Volume 180 — Massachusetts Reports

<p>Action, Removal to United States Circuit Court.</p> <p>An answer in abatement denying all jurisdiction over the defendant is an answer to the declaration within the meaning of U. S. St. 1888, c. 866, § 1, amending U. S. St. 1887, c. 373, § 3, requiring a petition for the removal of a case to the Circuit Court of the United States to be filed at or before the time that “ the defendant is required to answer or plead to the declaration or complaint of the plaintiff.”</p>

<p>Mechanic's Lien, Priority.</p> <p>In a suit in equity by a purchaser of land at a mortgagee’s foreclosure sale against a lumber company and a plumber who had established mechanic’s liens on the land, to restrain them from enforcing their orders of sale on the ground of the priority of the mortgage, it appeared, that before the mortgage was executed and delivered, the owner of the land, having already built on other land certain houses and six room cottages for whiph he bought the lumber from the defendant company, went to the company’s yard and said he wished to buy lumber to be used in building a six room cottage on the land in question, and that the company agreed to sell him the necessary lumber when he should want it, to be paid for at fair market prices, the company estimating the cost of the lumber at about $600, that on the day before the mortgage was executed and three days before it was recorded the company had delivered under this arrangement enough lumber to complete the lower floor, sills and most of the studding of the house and six weeks later had delivered all the materials called for, and that they had been used in the construction of the house. As to the defendant plumber, it appeared, that the price for the plumbing for the house was agreed upon and was to include all labor and materials, that the materials were purchased and some work done with regard to sewer connections before the mortgage was made, and that the actual work of putting in the plumbing was begun two weeks after the execution of the mortgage as soon as the condition of the building warranted it. Meld, that, assuming that it was open to the plaintiff to question the validity of the liens in this proceeding, the foregoing facts justified a finding that there was a contract w.ith. each of the defendants before the execution of the mortgage, and that the defendants’ liens took precedence of the mortgage.</p>

<p>Tort by an infant by his father and next friend for injuries caused by coming in contact with a horse or wagon of the defendant alleged to have been driven negligently by a servant of the defendant. Writ dated March 21, 1900.</p> <p>At the trial in the Superior Court, before Pierce, J., the judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort by an infant by his father and next friend to recover for personal injuries caused by the plaintiff being run into by or thrown from an electric car of the defendant through the alleged negligence of the defendant and its servants. Writ dated July 6, 1898.</p> <p>The declaration contained three counts which, omitting certain introductory allegations, were as follows:</p> <p>The first count alleged, that the plaintiff was a child of the age of six years, and was lawfully on a public street in the city of Holyoke, in the exercise of due care and that the defendant negligently and carelessly ran into the plaintiff, whereby the plaintiff was hurt.</p> <p>The second count alleged, that the plaintiff was a child of the age of six years, and was running across Appleton Street; that the defendant’s car came around from High Street on to Appleton Street, so that the plaintiff and the defendant’s car came into collision; that the plaintiff caught hold of the handle of the front of the defendant’s car to save himself from falling under the wheels; that it rvas the duty of the defendant to conduct itself under the circumstances with due care and regal'd to the plaintiff’s safety ; but that it negligently failed so to do, but kept its car along the way, increasing its speed and dragging the plaintiff along with the car; that the plaintiff was finally thrown under the wheel and greatly hurt; that the plaintiff was himself in the exercise of due care; and that the defendant was negligent.</p> <p>The third count alleged, that the plaintiff was crossing Appleton Street in Holyoke; and in so doing came in contact with one of the defendant’s cars, and to save himself from falling caught hold of the car and got upon a step of the car; that the defendant’s servants thereupon recklessly, wantonly, and with gross disregard to the plaintiff’s safety, started up the car, causing it to shake, and recklessly, wilfully and wantonly, with. gross disregard of the plaintiff’s safety, threw him upon the ground and under the wheels of the car, whereby he was greatly injured, and that the plaintiff himself was in the exercise of due care.</p> <p>The case was tried in the Superior Court before Pierce, J. At the close of the plaintiff’s evidence, the judge, at the request of the defendant, ruled that the plaintiff could not recover on the first two counts of the declaration; and the plaintiff excepted.</p> <p>At the close of all the evidence, the judge ruled that there was no evidence to be submitted to the jury and directed a verdict for the defendant, and, by agreement of counsel, reported the case for the consideration of this court. If the ruling of the judge was correct, the verdict was to stand; otherwise, the case was to be remanded to the Superior Court for trial.</p> <p>At the time of the accident the plaintiff .was six and one half years old. The material portions of the evidence are stated in the opinion of the court.</p>

<p>Bill in equity by the owner of certain land subject to a mortgage assumed by her, to restrain the administrators of Willard Elmer, the holders of "the mortgage, from foreclosing it, or disposing of it and the note secured thereby, and for an order to the defendants to discharge the mortgage and cancel the note, filed July 7,1900.</p> <p>The bill alleged that the plaintiff was the owner of a tract of land to which she derived title by a deed of one Herman E. Bogardus, by which deed she assumed and agreed to pay a certain mortgage of the premises given by Bogardus, which mortgage and the note for $1,300 thereby secured had been assigned to Willard Elmer, the defendants’ intestate, that the defendants’ intestate on or about January 11, 1898, executed and delivered to the plaintiff the following agreement: “ Springfield, Mass., Jan. 11, 1898. In Consideration of Business and Test Sittings Reserved from Mme Sesemore, the Clairvoyant, otherwise known as Mrs. Josephene L. Moore on Numerous occasions I the undersighned do hear by agree to give the above naned Josephene or her heirs, if she is not alive, the Balance of her Mortgage note whitch is the Herman E. Bogardus Mortgage note of Jan. 5, 1893, and the Interest on sane on or after the last day of Jan. 1900, if my Death occurs before then whitch she has this day Predicted and Claims to be the truth, and whitch I the undersighned Strongly doubt. Wherein if she is right I am willing to make a Recompense to her as above stated, but not payable unless death Occurs before 1900. Willard Elmer.”</p> <p>The bill alleged, that by the foregoing instrument the premises were released and discharged from the operation of the mortgage deed, and the note secured thereby was paid in full and became null and void, upon the death of Willard Elmer, which occurred before the year 1900, to wit, on September 15,1899.</p> <p>The bill also alleged, that before the execution of the above agreement, at the request of Willard Elmer, the plaintiff gave to Elmer the business and test sittings referred to in the agreement as the consideration for the agreement,.and at his request devoted much time and labor thereto.</p> <p>The defendants demurred, and among the causes of demurrer alleged, that the above agreement annexed to the bill was a wagering contract and against public policy and void, and that it was without consideration.</p> <p>In the Superior Court the case was heard by Lawton, J., who made a decree sustaining the demurrer and dismissing the bill. The plaintiff appealed; and, at the request of the plaintiff, the judge reported the case for the determination of this court. If the demurrer was sustained rightly, the bill was to be dismissed; otherwise, the demurrer was to be overruled and the defendants were to answer to the plaintiff’s bill.</p>

<p>Negligence, Contributory.</p> <p>Por a mother to leave her child about eighteen months old playing with other children in the presence of a woman neighbor in the neighbor’s yard, with no fence between it and a quiet street and in sight of the mother, from whence the child in the temporary absence of the neighbor wanders into the street and is run over at a point nearly in front of where the mother is working in her own yard, is not so clearly negligent, that, in an action under St. 1898, c. 565, for causing the death of the child, the case should be taken from the jury. The jury would be justified in finding, that such oversight as the mother could use and might be presumed to have used were as much as fairly could be expected or required from one in her situation.</p>

<p>Tort by an infant, by her father and next friend, for the exclusion of the plaintiff from a public school in the town of Chester. Writ dated April 25, 1900.</p> <p>At the trial in the Superior Court, before Lawton, J., without a jury, it appeared, that the plaintiff at the time of her exclusion-from the school in April, 1900, was five years and ten months old, that she applied for admission to a public school for beginners taught by one teacher, and that at the time of the application there were children younger than the plaintiff attending this school. The rule under which the plaintiff was excluded was as follows: That “ All pupils must enter this school at the beginning of the fall term, or within three or four weeks thereafter ; and that pupils desiring to enter at any other time were excluded unless found qualified to enter the classes then in said school.” This rule did not apply to children between the ages of seven and fourteen years, and children between those ages had the right to attend the public schools at any time.</p> <p>The rule was not recorded in the permanent record book provided for in Pub. Sts. c. 44, § 27, and there was no record in the book of any vote or order regulating the time of admission to the respective schools.</p> <p>The plaintiff requested rulings, that the plaintiff was excluded unlawfully because the regulation was not recorded in the permanent record book, that the regulation was not a lawful one, and that the plaintiff being of school age had the same right to attend the public schools as if she had been between seven and fourteen years of age.</p> <p>The judge refused to give the rulings and found for the defendant ; and the plaintiff alleged exceptions.</p>

<p>Tort to recover the value of certain personal property which was attached by the defendant, a deputy sheriff, on a writ against a third party. Writ dated January 22, 1897.</p> <p>At the trial in the Superior Court, before Lawton, J., the defendant read the report of an auditor, to whom the case had been referred, accepted it in whole, and introduced in support of it the same witnesses who had testified before the auditor. The defendant requested that the auditor’s report be taken by the jury upon retiring to deliberate. The plaintiffs objected and the judge refused the request.</p> <p>The jury found for the plaintiffs in the sum of $80.25 ; and the defendant alleged exceptions.</p>

<p> Agency. </p> <p>In ail action for the price of bricks used in building a greenhouse for the defendant ordered for her by her son-in-law, it appeared, that the evidence for the plaintiff was the same as that at a former trial which this court had decided was sufficient to entitle the plaintiff to go to the jury. The defendant asked for a ruling, that there was “ no evidence that the defendant or her husband knew of the work until their return.” The ruling was refused. Held, that the refusal was right; that if the request meant only that there was no evidence that the defendant knew before her return that the work had been begun, this, if true, was immaterial, in case she had authorized the work, and that, if it meant that there was no evidence that she knew the work was to be done, the contrary had already been decided in the same case as reported in 172 Mass. 84.</p>

Contract to recover for breach of an agreement to pay the balance due on a certain mortgage note and certain taxes, which the defendant, by the acceptance of a certain deed, had assumed and agreed to pay. Writ dated February 3, 1900.

Contract to recover money lent by the plaintiff’s intestate to the defendant’s intestate. Writ dated February 23, 1900. The answer alleged, that the action was not brought within two years from the time that the defendant gave bond for the discharge of his trust and gave due notice of his appointment, and that the action was not commenced within six years next after the cause of action accrued.

Contract for breach of an agreement to pay off a certain mortgage assumed by the defendant in accepting a deed of a farm from the plaintiff with a condition requiring the support of the plaintiff during the remainder of his life in the manner therein provided. Writ dated July 25, 1899. At the trial in the Superior Court, before Bell, J., without a jury, the judge respectively refused and made the rulings stated in the opinion of the court.

Contract, by the collector of taxes of the town of Westminster, to recover the amount of a tax assessed in 1899, under Pub. Sts. c. 11, upon certain real estate lying in Westminster and belonging to the city of Fitchburg. Writ dated October 25, 1900. The case was heard in the Superior Court upon agreed facts, by Stevens, J., who decided in favor of the defendant, and reported the case for the determination of this court.

<p>Pauper, Transfer of pauper lunatic, Settlement.</p> <p>The power given by St. 1888, c. 69, to the State board of lunacy and charity, to transfer any pauper lunatic from a State charitable institution or lunatic hospital directly to the asylum for insane at Tewksbury, is not limited to the transfer of any class of pauper lunatics although the resolves under which the buildings at Tewksbury were erected speak of them as for “ harmless and incurable insane.”</p> <p>Upon the issue whether a man had acquired a settlement in a certain city, it appeared, that by a continuous residence there of more than five years and paying a poll tax assessed to him each year he had acquired a settlement under Pub. Sts. c. 83, § 1, cl. 5, unless during the time lie had received relief as a pauper within the meaning of § 2 of the same chapter. He had always supported himself and his family, except that he liad been unable to maintain his wife in the asylum for insane at Tewksbury to which she was transferred in 1888 by the State board of lunacy and charity, under the authority given by St. 1888, c. 69, from the Worcester Lunatic Hospital to which she had been committed in 1879. Pub. Sts. c. 83, § 3, provides, that “ No person who actually supports himself and his family shall be deemed to be a pauper by reason of the commitment of his wife, child, or other relative to a lunatic hospital or other institution of charity, reform, or correction by order of a court or magistrate, and of his inability to maintain such wife, child, or relative therein.” Held, that the transfer under St. 1888, c. 69, did not put an end to the original commitment but merely changed the place where the lunatic was kept, and that the new place equally with the old was a lunatic hospital and an institution of charity; therefore that the husband was not prevented from gaining a settlement by his inability to support his wife in the asylum.</p>

<p> Tax. Receiver. </p> <p>A receiver of a corporation cannot be taxed on monpy in his hands though deposited in his name as receiver. The legal title is in the company for which and its creditors the receiver is agent.</p>

<p>Bankruptcy, Contingent claims. Surety. Contract, Implied.</p> <p>In an action to recover money paid by the plaintiff as surety on the defendant’s bond given in another suit to dissolve an attachment, the defence relied upon was the defendant’s discharge in bankruptcy. The plaintiff signed the bond on March 29,1898. His payment as surety was on J une 12,1900. The defendant’s petition in bankruptcy was filed on February 13, 1900, and on April 10, 1900, he received his discharge. Held, that the debt due the plaintiff was contingent upon a breach of the bond and his payment as surety, which did not occur until after the defendant’s discharge. Therefore at the time of the adjudication of bankruptcy the plaintiff’s claim was a contingent one and as such not provable under the bankruptcy act of 1898, and so not discharged.</p> <p>The assumption in Morgan v. Wordell, 178 Mass. 350, that the Supreme Court of the United States would decide, that under the bankruptcy act of 1898 claims contingent at the time of the adjudication of bankruptcy cannot be proved, was followed in this case.</p>

<p>Tort by the trustee in bankruptcy of the estate of John J. Murphy for the conversion of certain property alleged to belong to the bankrupt’s estate. Writ dated April 8, 1899.</p> <p>At the trial in the Superior Court, before Fessenden, J., without a jury, the following facts appeared in evidence: On October 12, 1898, the defendant, Charles Case, attached certain personal property of Murphy in an action of contract on a writ returnable in the Central District Court of Worcester. The property sued for in this action was the same property attached on the writ of the defendant. The defendant entered his writ and obtained judgment against Murphy. Execution was issued November 7, 1898.. The officer levied on the property held by him under the attachment November 16, 1898, and sold it at public auction November 29, 1898. The property was bought in by the defendant for $38.82, he being the highest bidder. There was evidence tending to show that at the time of the attachment, judgment, levy and sale, Murphy was insolvent, and that on November 19,1898, he executed and delivered to one Hall an assignment for the benefit of his creditors. The validity of this assignment and the solvency of Murphy were in dispute. There was also evidence, that a copy of this assignment was delivered to the defendant November 21, 1898. Murphy was present at the sale and publicly stated that he was insolvent, and a copy of the assignment was exhibited by the counsel for Hall, who forbade the sale. On December 16,1898, Murphy filed a voluntary petition in bankruptcy, and was adjudicated a bankrupt. The plaintiff was appointed trustee in bankruptcy of the estate of Murphy, and demanded of the defendant the property sold on execution. The defendant refused to surrender the property, alleging a valid title to it under, the execution sale.</p> <p>The defendant requested the judge to rule, that on the foregoing evidence the plaintiff could not recover. The judge refused so to rule, and found for the plaintiff; and the defendant alleged exceptions.</p>

<p>Equity Pleading and Practice, Master’s report, What open under denial in answer, Exception to form of question or to answer of witness as not responsive.</p> <p>When by an order of court a case is sent to a master “to hear the parties and examine their vouchers and evidence, and to determine the facts, and make report thereof to the court,” the master is not obliged to report the evidence.</p> <p>Where a master does not report the evidence the court cannot determine whether the evidence was sufficient as matter of law to warrant a finding made by him. A bill in equity by a trustee under a will prayed for the payment to the plaintiff of a deposit represented by a savings bank book alleged to have been the property of the plaintiff’s testator and by him intrusted to the defendant’s intestate. The answer denied the allegations of the bill. Held, that under this answer the defendant might show that the plain tiff’s testator delivered the book to the defendant’s intestate with the intention of giving it to him, and a master so might find.</p> <p>An exception to a question allowed by a master to be put to a witness, after a general objection only, cannot be sustained on the ground that the question was not in proper form. The same is true of a portion of an answer of a witness excepted to as irresponsive, when the excepting party had made no request of the master to strike out any part of the answer as not responsive.</p>

<p>Petition to establish the truth of exceptions in an action of tort for damages for personal injuries caused by a car of the defendant coming into collision with an ice cart which the plaintiff was driving. Also a bill of exceptions allowed in the same case, relating to interrogatories. Writ dated September 22, 1899.</p> <p>At the trial in the Superior Court, before Bell, J., the jury returned a verdict for the defendant. No exceptions were taken by the plaintiff at the trial to the judge’s charge, nor did he call the attention of the judge to any error in it, nor suggest any directions or changes. The plaintiff filed a motion for a new trial. The commissioner appointed to hear the plaintiff’s petition found, that at the hearing on the motion for a new trial the plaintiff asked the judge to rule that certain expressions contained in the charge were expressions of opinion sufficient as a matter of law to entitle the plaintiff to a new trial, and that certain portions of the charge were argumentative. The judge refused to make the rulings requested, and overruled the plaintiff’s motion. The plaintiff presented a bill containing exceptions to the ruling of the court on the motion for a new trial, in which he stated that the judge as á matter of law ruled, that if the charge contained expressions of opinion they were remedied by additional instructions, and that the expressions referred to by the plaintiff were not expressions of opinion. The exceptions were disallowed, the judge stating that he overruled the motion for a new trial as a matter of discretion and not as a ruling of law, as stated by the plaintiff in the bill of exceptions.</p> <p>The second bill of exceptions to the refusal of the judge to order the defendant’s president to answer certain interrogatories put by the plaintiff was allowed. The interrogatories which the plaintiff sought to have answered were as follows:</p> <p>“ 4. What caused the collision ? State fully.</p> <p>“ 5. Where was the cart when it was first seen by the motorman, stating as near as you can the exact spot, and stating approximately how far it was from the car ?</p> <p>“ 6. Where was the cart when it was first seen by the conductor, stating as near as you can the exact spot, and stating approximately how far it then was from the car ?</p> <p>“ 7. State all the motorman or conductor or both saw of the cart, its different positions and movements, and how and where it went, and all that it did, and what course or courses it took, from the time it was first seen by either of them until the time of collision.</p> <p>“ 8. What approximately was the fastest speed of the car at the time, and after the time the cart was first seen by either the motorman or conductor?</p> <p>“ 9. When did the car lessen its speed on account of the cart’s movements or proceedings, giving as near as possible the exact spot of location of both car and cart, and the approximate distance from each other.</p> <p>“ 10. Prior to the above lessening of speed, state what and all that was done, and the order in which it was done to notify the plaintiff that the car was approaching.</p> <p>“ 11. State all that was done to lessen the car’s speed, and in the order in which they were done.</p> <p>“ 12. After beginning the above lessening of speed, state in the order in which it was done all that was done to notify the plaintiff of the approaching car.</p> <p>“ 13. State everything else that was done by the defendant, its agents or servants, to avoid the accident.</p> <p>“ 14. In what respect were the defendant, its agents or servants, guilty of negligence in causing the accident ? State fully and explicitly.”</p> <p>“ 23. What are their respective ages ? ” [That is, of the motorman and the conductor.]</p>

<p>Contract, Parties.</p> <p>In an action by an attorney at law to recover for services in examining the title to certain land, it appeared, that the defendant was the owner of the land and applied to one H. for a loan upon a mortgage thereof, and that he signed an application in writing for the loan addressed to H. by which he agreed in consideration of the acceptance of his application "to pay to the counsel appointed by them his charges for the examination of the title and for conveyancing.” The plaintiff, who had examined the title under the above arrangement, asked for a ruling that the provision above quoted constituted a contract between him and the defendant on which he was entitled to recover. Held, that the ruling asked for could not be made, as the written promise was addressed to H. and was upon a consideration to move from him. Whether on the facts in the case a contract might have been found to have been made between the plaintiff and the defendant on the terms of the clause quoted, was not open, as the only exception was to the refusal to give the ruling requested as above.</p>

<p> Constitutional Law. Ex post facto laws. </p> <p>On a petition for a writ of habeas corpus, it appeared, that the petitioner had been sentenced to death and liad been committed to the warden of the State prison under St. 1898, c. 326, which required, that from the time of deliver}' to the warden until his execution or discharge a convict under sentence of death should be kept in a cell provided for the purpose, and that no person should be allowed access to him without an order of the court, except the officers of the prison, his counsel, his physician, a priest or minister of religion, if lie should desire one, and the members of his family. This was amended by St. 1901, c. 520, § 1, so as to read: “ except the officers and employees of the prison, his counsel, and such physicians, priest or minister of religion as the warden may approve, and the members of his family, who are identified to the satisfaction of the warden," and then was added: “ If tile execution of the death sentence is respited by the governor, or otherwise delayed by process of law, the convict may, in the discretion of the warden, be confined in one of the cells in the solitary prison established by ” St. 1894, Res. c. 109. It was contended that the warden .¡had no authority to hold tlie petitioner in custody except under St. 1901, c. 520, and that as against the petitioner that statute was unconstitutional and void as ex post facto. Held, that no rights were conferred upon the prisoner by the statute of 1898, which related to matters of prison discipline, containing merely restrictions on the warden and directions for keeping the prisoner until execution, and that the persons mentioned as possibly having access to him were mentioned only by way of exception to the general exclusion of all others, the excepted persons remaining subject to Pub. Sts. c. 221, §§ 33-35, requiring" a permit and authorizing the warden to exclude any one “ when it appears that such admission would be injurious to the best interests of the prison ”; moreover, that no change was made by the statute of 1901 in the persons who might be allowed access to the prisoner; and that the statute of 1898 more clearly than that of 1901 permitted solitary confinement; and that, if all the foregoing propositions were otherwise, it would not follow that the petitioner should be discharged, as the mode of confinement is no part of the punishment.</p>

<p>Contract, Construction, Performance.</p> <p>An agreement, to “ introduce, sell and prosecute the introduction and sale of ” certain goods and “to use due diligence in the introduction and sale ” of the goods, is complied with if the goods are put on the market and brought to the attention of tile public, and an effort is made to induce the public to purchase them. Undertaking to introduce the goods does not mean to warrant that they will become popular witli the public and will be purchased generally.</p>

<p>Bill irr equity by the heirs at law of Thomas G. May, late of Fitchburg, and one claiming under certain of them, against the mortgagee from an assignee of a purchaser at a tax sale of certain real estate belonging before his death to Thomas- G. May, and thereafter alleged to have been sold for taxes illegally assessed, to compel the cancellation and discharge of the mortgage as a cloud upon the plaintiffs’ title, filed November 7,1899.</p> <p>In the Superior Court the case was heard by Maynard, J., who made a decree declaring the mortgage to be void and a cloud on the title of the plaintiffs, and ordering the defendant mortgagee to deliver up the mortgage to be cancelled and to discharge it upon the record. The defendants appealed. The rulings and findings of the judge and the evidence to which they related are stated in the opinion of the court.</p>

Petition by the Boston and Albany Railroad Company, under St. 1890, c. 428, and acts in amendment thereof, for the assessment of damages occasioned to the petitioner by the taking of certain of its lands for streets and the abutments of bridges over the petitioner’s tracks in Worcester, constructed as a part of the abolition of certain grade crossings in Worcester, filed April 1, 1892, and notice thereof to the city of Worcester issued January 17, 1895.

<p> Equity Jurisdiction. Trust. </p> <p>A bill in equity will not lie by a cestui que trust to compel an accounting for trust property conveyed by the trustee in payment of his own debt to the defendant, who knew that it belonged to the trust, if the plaintiff consented to the conveyance either before or after the transfer was made. The only question is whether as a fact such consent was given. Here held that it was.</p>

<p>Evidence, To contradict witness, Hearsay. Practice, Criminal, Exception.</p> <p>A murder was committed at 2 a. m. and the wife of the murdered man was the only eye-witness. She was called as a witness and failed to identify the defendant as the man who struck the fatal blow. The defendant introduced evidence for the purpose of showing that a certain other person might have committed the murder and had a motive for doing so. This other person was produced in court by the government and the widow of the murdered man was asked whether he was the person referred to in portions of the testimony and said that he was. On cross-examination for the defendant she was asked “ Is this the man whom you said was the only man you could think of who would commit the murder 1 ” The question was excluded. Held, that the exclusion was right; if the words “you said" referred to something to which the witness had previously testified, the question was rightly excluded as assuming what was not true, as so far as appeared she had not so testified. If the question referred to something she had said at another time and was offered for the purpose of contradicting her previous statement, it was still rightly excluded, as her opinion, as to who would commit the crime or might have committed it, was immaterial, and she could not be contradicted in regard to an immaterial matter.</p> <p>On the cross-examination of a witness for the government in a murder trial, the exclusion of a competent question is not a ground for sustaining an exception, if the question was answered in effect directly afterwards in answer to another question on the same subject, and there is no reason to suppose that the substance of the answer of the witness to the excluded question would have been different from the answer to the question admitted.</p> <p>In a trial for murder, it appeared, that after the murder and on the same morning the widow of the murdered man went with two police officers to a certain place. One of these officers was asked on cross-examination in behalf of the defendant what the widow said at that place in reference to the murder. The question was excluded. The other officer in answer to the question “Is that all of the conversation you had with her 1 ” said “ I asked her if her husband had any trouble with anybody, if she thought there was any man had any spite against him, and she answered — ” Here, on objection from the government, the witness was stopped. Held, that the first question properly was excluded, as it did not appear, that if the widow said anything it would have been competent for the purpose of contradiction or for any other purpose, and that the second witness properly was prevented from answering further, as it did not appear, and there was no offer to show, what the answer would have been if the witness had been allowed to complete it; but assuming, that the object of the evidence was to show that some person other than the defendant had a spite against the murdered man and that it was competent to show that fact, the declarations of the widow were hearsay and inadmissible for tiiat purpose.</p>

Contract for breach of an agreement in writing to keep the plaintiff and his shop employed for one year from June 1, 1896, in producing drop forgings from materials to be furnished by the defendant, the prices to be paid for the manufacture of the forgings to be determined from time to time by the mutual agreement of the parties. Writ dated January 14, 1897.

Contract against a. surety on the recognizance of one- Peacock, a poor debtor. Writ dated February 15, 1900.

<p>Two ACTIONS of TORT, one by Ozias, a minor son of Joseph Vincent, for personal injuries by being thrown from a baker’s wagon of his father, which was struck from behind by a car of the defendant, and the other by Joseph for damages to his horse and wagon. Writs dated January 19, 1899.</p> <p>At the trial in the Superior Court, before Sherman, J., at the close of the evidence, the defendant asked the judge to rule, that there was no evidence upon which the plaintiff in either case was entitled to a verdict; that there was no evidence of due care on the part of the plaintiff; that there was no evidence of any written notice of the time, place and cause of the accident given to the defendant; and that the verdict should be for the defendant. The judge refused to give any of these rulings.</p> <p>The jury returned verdicts for the plaintiff in the first case for $725 and for the plaintiff in the second case for $35 ; and the defendant alleged exceptions.</p>

Replevin to recover certain furniture and school furnishings used in the New Bedford Business University conducted - by one Mary A. Chase and attached by the defendant, a deputy sheriff, as the property of Chase. Writ dated January 31, 1899. The plaintiff claimed the property under a bill of sale from Chase.

<p>Negligence, Contributory of employee.</p> <p>If a workman in a paper mill on the order of a superintendent gets into a space in a machine where he knows that he is in close proximity to revolving rolls, for the purpose of throwing out some paper that has fallen on the floor of the machine, and, stooping, thrusts out his hand at a right angle among the rolls, in order to get it down to pick up the paper, when he might have got his hand down with safety before beginning to stoop, he is not in the exercise of due care.</p> <p>A workman in a paper mill knew that a certain roll eight inches in diameter, generally not in motion, had been taken out of the machine on which he was working and did not know whether it had been put back or not. On the order of a superintendent he got into a narrow space in the machine, for the purpose of picking up some paper that had fallen. In trying to get his hands down to pick up the paper, he attempted to put one hand on the eight inch roll which if there would not have been in motion. That roll not being in its place, his hand came in contact with another roll which was moving, got caught between the roll and a felt and was injured. Held, that he was not in the exercise of due care in' acting on the supposition that the missing roll had been put back in the machine, when the slightest inspection would have shown him that it was not there.</p>

<p>Negligence, Employers’ liability, Res ipso loquitur.</p> <p>In an action by an employee of the defendant injured by falling from a step ladder in consequence of its breaking, it appeared, that the plaintiff was second hand in the room where he worked and that it was part of his duty to inspect the ladder and see that it was kept in repair; that about three weeks before the accident the ladder was broken, that the plaintiff reported the fact, and the ladder was sent to the carpenter’s shop and repaired, and on its return was inspected by the plaintiff who thought it was all right, that the ladder broke in two as the plaintiff who had been using it was coming down and he fell to the floor and was injured, that the ladder did not break where it broke before, that the ladder did not slip on the floor and the plaintiff did not slip on the ladder. Held, that there was no evidence of negligence on the part of the defendant; that, if there was any breach of duty, it was on the part of the plaintiff and he could not avail himself of it, and, if there was a latent defect in the ladder, the defendant would not be responsible.</p> <p>It cannot be said that when a step ladder breaks the fact of its breaking points more closely to a defect in the appliance than to some carelessness on the part of the person using it.</p>

<p>Negligence, Employers’ liability: Assumption of risk.</p> <p>In an action by a workman injured in the hold of a coal barge by the swinging back of a steam shovel, it appeared, that after the bucket was lowered the plaintiff and the foreman would take hold of it at opposite corners and push it to the point from which the coal was to be taken, then both run back to escape the bucket as it swung back. When they began the coal was level, but as the work went on a bank of coal formed beyond the place where the shovel was working and the plaintiff testified that the coal continued to get steeper and more shifty and he noticed that it was harder to run back to avoid the bucket as it swung back. Whereupon he said to the foreman “ Why not take a few shovelfuls out forward and put it on a level and make more room. There is not sufficient room, here.” The foreman said “ I will, in a minute ” and the plaintiff answered “ All right.” He continued to work and, on the third shovelful after, slipped down on-the steep coal and was struck by the bucket and injured. Held, that the reply of the foreman “I will, in a minute” was not an assurance that the place was safe, but conveyed the information that before the coal would be levelled its surface would become still more steep by the operation of the shovel, and that the plaintiff’s reply “All right ” taken with the fact of his continuing to work meant that he continued to take the risk such as it might be; and that as matter of ■ law judgment must be given for the defendant.</p>

<p>Negligence, In causing fright of horse.</p> <p>In an action against a steam railroad for injuries caused by the plaintiff's horse taking fright at an electric car covered with white canvas resting on a flat car which stood on the defendant’s track near the highway, it appeared, that the consignee, a street railway company, had agreed with the defendant to unload the car at this point in order to move it across the street to a car barn of the street railway, and for that purpose with the defendant’s permission had taken down the defendant’s fence about eight feet high, which while it stood partially screened the car from the street, and that at the time of the accident the street railway company’s men were at work preparing to unload the car. Held, that the causes of the fright were due to transient conditions under the control of the street railway company and that it alone was liable, if any one. Semble, that no one was liable.</p>

<p>Contract for an alleged breach of an agreement in writing to purchase from the plaintiff certain land with a grocery store thereon and personal property appertaining thereto. Writ in the Third District Court of Bristol dated February 7, 1899.</p> <p>, Coming by appeal to the Superior Court, the case was tried before IAlley, J., without a jury. The contract declared on, omitting the attesting clause and the signatures of the parties and of the attesting witnesses, was as follows:</p> <p>“ Agreement made this fifteenth day of December, A. D. 1898 between A. C. Tripp of New Bedford, Mass., Bristol Co., of the first part, and E. B. Smith of New Bedford, Bristol Co., Mass., of the second part. The party of the first part hereby agrees to sell, and the party of the second part to purchase, a certain estate situated corner of Linden and Ashland Streets and bounded as follows: Bounded on the west by Ashland Street, on the south by Linden Street, on the east by land now or formerly of Davis, and on the north by a line to be established running in a straight line from east to west, and being not nearer than 3 feet to the north end of the store-building. Also the said Smith agrees to buy all the stock that is in good condition at regular wholesale price; and all damaged or shop-worn goods to be thrown out. The fixtures, also one express wagon and harness, to .be bought by said Smith at a price agreed on by three men, one to be selected by Smith, one by A. C. Tripp, and they two to select a third. Said Tripp agrees to paint the store building two coats of paint and to repair the piazza roof. Said premises are to be conveyed on or before Feb. first, 1899, by a good and sufficient warranty deed of the party of the first part, conveying a good and clear title to the' same free from all incumbrances excepting a certain mortgage of Six Thousand Dollars held by a Mrs. Wilbur,- and for such deed and conveyance the party of the second part is to assume Five Thousand Dollars of mortgage above mentioned. Ten dollars in cash are paid this day to bind the bargain. Full possession of the said premises, free of all tenants February first A. D. 1899, is to be delivered to the party of the second part, the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon only excepted.”</p> <p>The agreement was on a printed form filled in by one Morse, a real estate broker. The words “ said Tripp agrees to paint the store building two coats of paint and to repair the piazza roof ” were in the handwriting of Morse in the body of the instrument. The words “ the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon only excepted,” were a part of the printed form.</p> <p>Morse testified that at a meeting between the parties before the agreement in writing was signed, there was talk between them about painting the store building and repairing the piazza roof, Tripp, Smith and the witness being present. The witness was asked what the talk was, and the defendant objected on the ground that the agreement as to painting and repairing was embodied in the written agreement declared on. The plaintiff then offered to show that at this meeting it was agreed that the painting and repairing should be done after Tripp moved out of the store on February 1, 1899; and that a similar talk took place after the instrument was signed. The talk objected to was then admitted and the defendant excepted.</p> <p>The plaintiff also was permitted against the defendant’s objection to testify to the conversations between himself and the defendant in regard to the painting and repairs. This evidence was contradicted by the defendant’s testimony.</p> <p>Among the rulings asked for by the defendant was one, that the agreement was too uncertain to satisfy the statute of frauds, as it did not appear thereby where the north line of the premises to be conveyed was to run.</p> <p>The judge found and ordered judgment for the plaintiff for $577, and filed with his finding the following memorandum: “ Without reference to any paroi evidence on the subject I find and rule that under the terms of the agreement of Dec. 15, 1898, the plaintiff was not bound to paint the store building and repair the piazza roof before Feb. 1, 1899, and was to have a reasonable time within which to do such painting and repairing, and that such time would not have expired before Feb. 1, 1899. I find that the defendant absolutely refused to accept a deed and perform said agreement upon his part, upon the specific ground as stated by him, that the plaintiff had not then, Feb. 1, 1899, painted the building and repaired the roof, and upon no other ground. I find and rule that the defendant then waived such other objections, if any, as might have been made to the acceptance of a deed, and I find that the plaintiff was ready and willing on Feb. 1, 1899, to perform the contract on his part. All rulings requested by the defendant inconsistent with the findings and rulings above noted are refused.”</p> <p>The defendant alleged exceptions, which, after the resignation of Lilley, J., were allowed by Graskill, J.</p>

<p>Tort, with counts at common law and under the employers’ liability act, by a weaver for injuries received from a fall alleged to have been caused by the failure of the defendant to light the alley through which the plaintiff was passing on her way to leave the mill after it had stopped for the night. Writ dated October 21, 1899.</p> <p>In the Superior Court, Hophins, J. directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Landlord and. Tenant, Construction of covenants, Liability of lessor, Waiver of breach.</p> <p>A lease gave the lessees a right of renewal for such rental as they might agree upon with the lessor and continued “ or in case of failure so to agree, the said lessor shall purchase the improvements upon said land at a valuation to be agreed upon by the parties, or if they cannot so agree, at a valuation to be ascertained by three disinterested referees; or if the lessor shall prefer not to purchase said improvements, the lessees shall purchase said land.” The lessees entered and erected a brick building on the land, occupied until the lease expired, then did not attempt to renew the lease but demanded that the lessor should purchase the improvements, and, on his refusal to do so, sued him on the above covenant. It seemed to be found or assumed, that the lessor had elected not to sell the land to the lessees. Held, that the covenant to purchase the improvements was not conditional on the plaintiffs wishing to renew the lease, but that the words “in case of failure so to agree” included the case of a failure to renew because the plaintiffs would not agree upon any rental at all, and that if the defendant had elected not to sell the land to the plaintiffs, the plaintiffs could recover from him the value of the improvements. No question was raised upon the provision for fixing the price by referees.</p> <p>However it may be as to benefits, a lessor of land by conveying the land cannot get rid of the burden of his covenants in the lease.</p> <p>A lease contained a covenant not to assign or underlet and a proviso authorizing the lessor for breach of any covenant to enter the premises and thereby determine the lease. The lessees became incorporated and assigned the lease to the corporation, and thereafter the corporation occupied and paid the rent to the lessor, who opened an account with it upon his books. Held, that these facts warranted a finding that the lessor waived the breach of the covenant and condition against assignment, and that he took the chances as to whether the breach was an assignment or a sublease.</p>

<p>Bankruptcy, Suits by trustee. Contract, Building contracts. Agency.</p> <p>Under the bankruptcy act of 1898 a trustee in bankruptcy may sue in his own name on a demand which became due to the bankrupt before the commencement of the proceedings in bankruptcy.</p> <p>In an action by a trustee in bankruptcy to recover on a contract made by the bankrupt with the defendant to do the mason’s work in a building, it appeared, that, when the greater part of the work was performed, the bankrupt became ill and stopped work, whereupon the defendant said to persons representing the bankrupt that he was willing to complete the work himself and to pay to the plaintiff whatever might remain due to him as the bankrupt’s legal representative, and the defendant then completed the work. Held, that on these facts, a finding for the plaintiff was justified, as the trial judge must have found that the work in effect was completed by the bankrupt through, the agency of the defendant and that there was no abandonment of the contract.</p>

<p> Infant. </p> <p>An infant who purchases a bicycle under a contract of conditional sale on which he makes default, after the bicycle has been taken from him under the terms of the contract, may avoid the contract and recover the money that he has paid thereunder, although the sum paid would not be an unreasonable compensation for the use of the bicycle while in his possession.</p>

<p>Intoxicating Liquors, Civil action.</p> <p>In an action by a parent under Pub. Sts. c. 100, § 21, for injury in his means of support, the selling of intoxicating liquor by the defendant to the plaintiff’s son may be found to be the proximate cause of his being run into by a railroad train while reeling on the track in a drunken condition two or three hours later.</p> <p>In an action under Pub. Sts. c. 100, § 21, for an injury alleged to have been caused by the defendant selling intoxicating liquor to the plaintiff’s son, an instruction, that the plaintiff must prove that the intoxication was the natural and proximate cause of the injury is correct without inserting the word “necessary,” and a refusal to insert this word is right. The defendant would be none the less liable because the particular result could not have been foreseen as necessary at the time of his act.</p> <p>In an action under Pub. Sts. c. 100, § 21, by parents alleged to have been injured in their means of support in consequence of the intoxication of their son caused by liquor sold to him by the defendant, it appeared, that the plaintiffs lived in Nova Scotia where the father made his -living by fishing in a small boat, that the son injured in consequence of the intoxication was the second of nine children and was twenty-six years old at the time of the accident, that two years before the accident lie came to Massachusetts and since then had sent money to his parents at different times, about $170 in all, and that sometimes his mother had sent to him for money and lie had responded and the money was used for support in the household, that by the accident one of his arms was made permanently useless, and thereafter he earned little or nothing. Held, that the jury were warranted in finding that the help of the son was one of the plaintiffs’ means of support and was taken away; that the statute applies to a case of partial dependence and gives a remedy to parents injured in their actual means of support by the loss of help from a child, without regard to their having a legal right to the help.</p>

<p>Negligence, Contributory, of parent.</p> <p>In an action against a street railway company by a child run over by an electric car of the defendant, it appeared, that at the time of the accident the plaintiff was three years and ten months old, that her parents lived in a tenement on a busy street in Lynn where there was considerable teaming and a line of electric cars, that the plaintiff had been left in charge of her mother, who was then not very strong, that the mother allowed the plaintiff to go downstairs and play in the yard with a boy of five, the gate of the yard being always open, that the mother looked out the window, sent the boy on an errand and saw the plaintiff, thus left unattended, for the last time before the accident, which happened more than an hour later, that the plaintiff strayed into the street and in trying to return ran directly in front of the car and was injured. Held, that the plaintiff could not recover, there being no pretence that she was exercising the care of a prudent adult, and no evidence of due care on the part of her parents.</p>

<p>Bill in equity by Charles N. Kelly and George L. A. Kelly, both of Haverhill, copartners, doing business under the style of Kelly Brothers, against William E. Biddle and Thomas D. Nelson, both of Amesbury, setting forth, that the plaintiffs and defendants associated themselves together as copartners on February 20, 1897, for the purpose of purchasing the stock in trade of the Amesbury Carriage Company, a corporation formerly having its place of business in Amesbury, with a view of selling the stock and making a profit thereon and dividing the profits equally among Kelly Brothers, Nelson and Biddle, one third to Kelly Brothers, one third to Nelson, and one third to Biddle; that the copartners purchased the stock and that it had been sold and turned into money, all of which had come into the hands of the defendant Biddle, and that the plaintiffs had demanded an account from Biddle but had been unable to obtain one, and that Biddle had converted a part of the money to his own use, and praying that an account might be taken and a decree made ordering Biddle to pay to. the plaintiffs their share of the money, filed April 18, 1899.</p> <p>The defendant, Biddle, in his answer alleged, that on or about February 20, 1897, the Amesbury Carriage Company was insolvent and had made an assignment for the benefit of all its creditors, and that the plaintiffs, the defendants Nelson and Biddle and other creditors of the insolvent corporation, including the Charles Wing Company, a corporation, entered into the joint undertaking described in the opinion of the court, which the defendant Biddle contended was an illegal contract because one of the parties to it was a corporation and therefore could not be enforced.</p> <p>The Superior Court made a decree confirming a master’s report in favor of the plaintiffs, and ordered that the plaintiffs and the defendant Nelson each have judgment against the defendant Biddle in the sum of $1,067, with interest from the filing of the bill. From this decree the defendant Biddle appealed.</p>

<p>Libel eob divorce, charging in one count desertion and in another adultery, filed December 29, 1898.</p> <p>At the trial in the Superior Court, before Pierce, J., the libel-lee requested a ruling that there was no evidence to justify a finding of adultery. The judge ruled that he would permit the libellee to rest upon that count. Thereupon the libellee did so, and took the stand as a witness to testify as to desertion, his counsel examining him only on that issue. The libellant attempted to cross-examine him on the issue of adultery, and the judge excluded the questions, the libellant excepting.</p> <p>The judge found that the libellant had not supported her allegations on either count of the libel, and ordered the libel dismissed; and the libellant alleged exceptions.</p>

<p>Intoxicating Liquors, License. Municipal Corporations.</p> <p>The effect of St. 1894, c. 428, § 7, is to relieve the license commissioners of a city of all official duties and deprive them of all powers whenever the city votes that no licenses shall he granted, and for the time to transfer their powers and duties as to sixth class licenses to the mayor and aldermen. It has this effect in regard to the powers given by St. 1896, c. 397, regulating the practice of pharmacy and providing for the issuing of sixth class licenses to retail druggists and apothecaries.</p>

<p>Municipal Corporations, Acceptance of statute by town, Annual town meeting.</p> <p>St. 1901, e. 78, provides for the extension of the civil service law to the police and fire forces in such towns as shall vote to accept the act and, that the act may be submitted to the voters of any town “ at any annual town meeting or at any special meeting called therefor.” St. 1894, c. 132, as incorporated in St. 1898, c. 548, § 349, provides, that towns divided into voting precincts may for their annual town election establish precinct voting for all town officers to be chosen thereat and for voting on the question of granting licenses for the sale of intoxicating liquors, and that all other matters to be considered at the annual town meeting shall be in order only at a town meeting held within thirty days after the date of the annual election. Held, that a vote of a town by precinct voting at the first part of its annual town meeting, to accept St. 1901, c. 78, was not a legal acceptance of the statute.</p>

<p>Review, Prevailing party. Costs, On review.</p> <p>Where there has been a judgment for a plaintiff and thereafter a writ of review has been granted to the original defendant who is then allowed to amend by filing a declaration in set-off, which he might have filed in the first stage of the case, after which a judgment is given to the original defendant for a balance in his favor, he is the prevailing party within the meaning of St. 1895, c. 234, § 22, and as such is entitled to costs.</p>

<p>Witness, Impeachment of.</p> <p>In an action for an injury alleged to have been caused by the negligent driving of the defendant’s servant, this servant testifying as a witness was asked by the plaintiff if he did not make certain statements to the plaintiff in regard to the accident. This he denied and gave his version of the conversation. After the defendant rested, the plaintiff called as a witness one who was present at the conversation and asked him to state what the servant said with reference to the accident. The question was excluded, the judge ruling that the witness might be asked whether the plaintiff made the statements testified to by the servant. This the plaintiff declined to do, and asked to be allowed to make an offer of proof as to what the servant said, which the judge refused to permit. Held, that the ruling was wrong and that the testimony should have been admitted to contradict the servant on a material matter, thus affecting his credibility and the weight to be given to his testimony in regard to the accident. The plaintiff properly could not be confined in contradicting the witness to the statements testified to by him as having been made by the plaintiff, but might show anything that the witness had said in regard to the circumstances attending the accident which was inconsistent with his testimony.</p>

<p> Receiver. </p> <p>The general rule in this Commonwealth is that a receiver of a corporation has no right, outside of the jurisdiction of the tribunal that appoints him, to sue in his own name on a claim of the corporation, unless he actually or virtually is an assignee of the claim which he seeks to enforce.</p> <p>In an action brought in his own name by a receiver appointed by a court of another State, if the answer is a general denial, the burden is on the plaintiff to show that he is a receiver authorized to bring the action in our courts in his own name, and in order to recover he must prove that the defendant is liable to him as receiver in the present form of action.</p>

<p>Negligence, Contributory, of another, Proximate Cause.</p> <p>One sent in an express wagon with another man as driver to deliver coal, who returning on the seat with the driver is thrown out and injured by a collision with an ice cart negligently driven, may recover from the owner of the ice cart, although the negligence of the driver of the wagon in which the plaintiff was sitting may have contributed to the accident.</p>

<p>Appeal from an order of the Superior Court ordering an action discontinued. The writ issued March 21, 1901, and an attachment was made by trustee process. On April 9, 1901, the defendants made a demand in writing upon the plaintiff’s attorney for a copy of the declaration stating the plaintiff’s cause of action. The demand was not complied with, and the defendants moved for the order from which the appeal was taken.</p> <p>Pub. Sts. c. 167, § 8, as amended by St. 1894, c. 405, is as follows: “ The declaration may be filed in the clerk’s office on or before the day on which the writ is returnable, unless an arrest of the person is made. If there is an attachment of property, and the declaration and bill of particulars, when necessary, are not inserted in the writ, a copy thereof shall be furnished to the defendant or his attorney within three days after he has demanded the same in writing of the plaintiff or his attorney, and if not so furnished, the action may, upon motion of the defendant, be discontinued.”</p>

Contract for ten monthly instalments of $74.99 each, alleged to be due and payable to the plaintiff for the support and maintenance of the plaintiff and the plaintiff’s minor son, under an instrument in writing under seal. Writ in the Municipal Court of the city of Boston dated October 2,1899. The answer denied the allegations of the declaration, and alleged the defendant’s discharge in bankruptcy, also that the contract sued upon was without consideration.

Tort by a pattern maker employed by the defendants for having two fingers cut off by the knives of a buzz planing machine. Writ dated April 5, 1900. At the trial in the Superior Court, before Bond, J., at the close of the plaintiff’s evidence, the substance of which appears in the opinion of the court, the defendants rested, and requested the judge to order a verdict for the defendants. This the judge refused to do.

<p>Negligence, Employer’s liability, Contributory.</p> <p>In an action by an employee learning to be a shaver of hides in the defendant’s shoe leather factory, for injuries received by the plaintiff by having his hand cut by knives attached to a revolving cylinder while trying to adjust a roller to the cylinder, it appeared, that adjusting the roller was part of the ordinary duty of the operator of such a machine and there was testimony that the plaintiff was doing it in the ordinary way, that the machine he was working on was old and was without the guards which were on similar machines in the defendant’s factory, and that defects were discovered in the machine after the accident, and there was evidence tending to show that some of these defects caused the roller to start suddenly and to draw the plaintiff’s hand upon the knives, while if the machine had been in good repair, there would have been but little danger. It did not appear that the plaintiff knew and appreciated the risk from these defects. Held, that it could not be said as a matter of law that the plaintiff was not in the exercise of due care.</p>

<p>Tort for injuries sustained by Michael Callahan, the plaintiff’s intestate, while in the employ of one Edgecomb J. Rowe by a fall caused by the giving way of a staging alleged to have been built of unsafe and unsuitable materials negligently furnished by the defendant. Writ dated May 31, 1900.</p> <p>In the Superior Court, before Sheldon, J., at the close of the evidence on both sides, the judge at the request of the defendant directed a verdict for the defendant, and, at the request of the plaintiff, reported the case for the consideration of this court. If the ruling was correct judgment was to be entered on the verdict; otherwise, the verdict was to be set aside and a new trial ordered.</p>

<p>Evidence, Declarations of deceased persons. Practice, Civil, Exceptions.</p> <p>St. 1898, c. 585, admitting declarations of deceased persons formerly excluded as hearsay, applies to declarations in writing.</p> <p>If in an action for personal injuries, declarations of a deceased examining surgeon, admitted under St. 1898, c. 535, are in the form of a report in writing and the report contains material statements, a party wishing, to have the use of the paper limited in any way or any part of it sealed up must ask for instructions.</p> <p>The question whether a certain document warranted a conclusion which is being argued to the jury by counsel, cannot be raised by asking the judge to interrupt the counsel and stop that part of his argument. The party wishing to raise the point must ask for a ruling, and if his request is refused he can except.</p>

<p>Tort to recover nominal damages for the refusal of the defendant to discharge a mortgage or mortgages on a piano of the plaintiff, the plaintiff alleging that he had paid the defendant in full the principal sum actually borrowed and interest at the rate of eighteen per cent per annum together with the further sum of $5 for actual expenses of making the loan and mortgage, entitling him to a discharge of the debt under the small loans act, St. 1888, c. 388, as amended by St. 1892, c. 428. Writ in the Municipal Court of the city of Boston dated February 14, 1900.</p> <p>The case coming by appeal to the Superior Court was tried before Hopkins, J. The plaintiff offered in evidence a mortgage and note, the last of a series described in the opinion of the court, and it was agreed, that if the jury found for the plaintiff, they might find nominal damages, to wit, the sum of $1. The plaintiff then rested. The defendant offered no evidence and requested the judge to rule that upon all the evidence the plaintiff could not recover and to direct a verdict for the defendant. The judge so directed, and the jury returned a verdict for the defendant. At the request of the plaintiff, the judge reported the case for the determination of this court. If the plaintiff had a right to go to the jury on the evidence reported, judgment was to be entered for the plaintiff for the sum of $1; otherwise, judgment was to be entered for the defendant.</p>

<p>Contract, Parties. Set-off, Mutual demands.</p> <p>A declaration in set-off alleged, that the defendant held a judgment against a certain corporation of which he was a stockholder, that the corporation had in accordance with a vote of its stockholders assigned its only valuable asset to the plaintiff on the condition, accepted by the plaintiff, that he should assume and pay all the debts of the corporation, and that therefore the plaintiff owed the defendant the amount of the judgment. Held, on demurrer, that the declaration in set-off stated no cause of action at law and therefore no demand that could be set off under Pub. Sts. c. 168, § 1, and that the defendant’s remedy, if any, must be by way of equitable defence or by a bill in equity. The plaintiff’s promise was made to the corporation and for its benefit, and the corporation alone had a right of action at law upon the contract.</p>

<p>Tort for injuries alleged to have been caused by the plaintiff being struck on the head by a cold chisel belonging to the defendant and negligently used by the defendant’s servants in cutting rivets from certain steel columns. Writ dated July 21, 1899.</p> <p>The declaration alleged, that the plaintiff was an employee and foreman of the Boston Electric Light Company and was in its behalf superintending the building of a shed or covering for certain engines and boilers and their foundations, and, after referring to the fact that the defendant was engaged in cutting iron and steel rivets, alleged, that in cutting such rivets the defendant used a steel cold chisel adjusted to a wooden handle, but so negligently and insecurely placed thereon that it was likely to fly off the handle, and fall upon and strike any person working upon the shed or covering; that the cold chisel used by the defendant, by reason of being so negligently and insecurely placed on the handle, and by reason of the negligence of the defendant and its servants in the use of it, came off its handle and fell a distance of fifty feet, striking the plaintiff upon the head and cutting, bruising and greatly injuring him.</p> <p>At the trial in the Superior Court, before Gf-asJcill, J., it appeared, that the accident happened in the engine or dynamo room of the power station of the Boston Electric Light Company then in process of erection. In the north wall of this engine room were steel columns fifty-eight feet high and set sixteen feet apart, and similar columns were set opposite to them in the dividing wall between the engine room and the boiler room. According to the plans, roof trusses of steel were to span the space of eighty-two feet resting on the tops of these columns. The plans for the walls called for masonry completely enclosing the steel columns to their full height. At the time of the accident these walls were only partly erected, and the columns extended some distance above the top of the wall in the condition that it then was. Long girders fifty feet from the ground ran the entire length of each side of this room, being riveted to the columns; and at the time of the accident the masonry walls had not reached these girders. Some time before this accident, owing to causes not material, all the steel trusses over the lower end of the engine room had fallen to the floor, and the tops of the columns upon which they had rested above the girders had been bent over and twisted out of shape.* Before the accident in this case, the Boston Electric Light Company had made a contract with the defendant by which the defendant agreed to cut out and remove the fallen trusses, to cut off the tops of the. columns above the girders and to splice new tops to the columns. At the time of the accident they had completed the work of cutting out and removing the steel trusses upon the floor of the building, and had begun the work of cutting out the tops of the columns. They had no stagings to do this, but were able to do their work standing upon the girder running lengthwise of the building, and in their work were directly above the masonry wall. At the time the plaintiff was injured, the bricklayers were working upon the masonry walls, and in other parts of the building there were large numbers of carpenters and laborers, all working at the same time that the cutting of the steel work was going on.</p> <p>The plaintiff testified, that he was in the employ of the Boston Electric Light Company, and was the general superintendent of carpenter’s work for that company ; that before August 17,1898, he had been instructed by the president of the company to build a wooden roof over the engine beds, which was to extend out some fifty feet from the boiler room wall in width, and one hundred and ten feet long, so that the men could work there in all weathers and be better protected; that he had charge of this work, and between three and four o’clock in the afternoon of August 17, 1898, drove over to the building to see how the work was getting along; that just as he got there the men were rolling through the door on rollers a wooden truss fifty feet long and about eight to ten feet rise, which was to be placed on posts and used in the construction of this wooden roof, and that he came alongside of the truss and put his hand on it; that the truss was a little over half way through the door, and the end nearest the engine beds was about fifteen or twenty feet from them, and moving towards them ; that he was a little beyond the centre of the truss, and steadying it; that some twelve or fiften men were moving it on rollers; that there were working in or about the building fifty or more men, masons and iron workers; that the iron workers were working some fifty feet up overhead, and, o's far as he could observe, were trimming up or cutting rivets, or fixing the damaged portions of the uprights; that they were working on the crane girder; that he could not tell how many there were, but there were several; that he had seen them cutting rivets, but not at that time ; and that they used in cutting them cold chisels similar to the one shown him at the trial.</p> <p>The plaintiff then described the. way that the chisels were fitted to the handles, how the handle was held, and how the chisel would be struck by another man using a sledge or hammer.</p> <p>He further testified, that he thought the iron workers were exactly over the wall, on the girder; that he was inside the building, and they were over him, that the first indication that he had of any accident was that he felt himself down, it seemed as if something had stunned him, and the next thing he remembered he was putting his hand to his head; that he knew the Pennsylvania Steel Company was doing the iron work on the building; that after the accident, when he was there and before he went out of the building, some one handed him a piece of iron, but he did not know who it was, and he identified the cold chisel shown to him as the piece of iron handed to him, which had been in his possession ever since; that from the time the building was started he had charge of all the wood work throughout the building; that the wood work was progressing while the other work was going on, and he had been there every day and sometimes twice a day, and knew the work that was going on there.</p> <p>The cold chisel which was shown to the plaintiff and identified by him at the trial was taken by the jury to the jury room. It was a piece of iron or steel five and one fourth inches in length and two inches wide, being two inches thick from one end to a point near the middle and then tapering down to an edge at the other end with a hole in it near the middle for the insertion of a handle. It weighed two pounds and two ounces and on its sides were stamped or cut in eight separate places the letters “P. S. Co.”</p> <p>One Thompson, a witness for the plaintiff, testified, that he was a carpenter and was working for the Boston Electric Light Company on August 17, 1898, having been working about the place for some time; that when the truss was being rolled in he was on the opposite side of the truss from the plaintiff, that the first thing he noticed was the plaintiff going down and this chisel going down close by him, that he saw both go down about the same time, and that some person there picked up the chisel and handed it to the plaintiff, and, being asked to identify the chisel shown to him, said that it was that or one very similar to it, that it was of that shape and size.</p> <p>At the close of the evidence, the defendant requested a ruling that upon all the evidence the plaintiff could not recover. This was refused by the judge and the defendant excepted. The defendant asked the judge to instruct the jury that the plaintiff must do more than show that the piece of steel fell and injured the plaintiff and that the piece of steel belonged to the defendant ; that he must go further and show the jury that the fall was caused by some negligent act of the defendant or its servants. This request the judge refused to give, and charged the jury generally, that the plaintiff must prove by a fair preponderance of the evidence that he received the injury in the manner and from the cause stated in the declaration; that the defendant’s servants were where they had a right to be, and that they were using tools such as they had a right to use; that the plaintiff had given no account whatever as to what work was being done, or whether any work was being done at that particular moment, or just at the moment the accident happened, by the employees of the steel company; that it did not appear that they were using this particular cold chisel or any other, or that they were doing any work whatever.</p> <p>The judge also said : “ Are you satisfied, by a fair preponderance of the evidence, that that piece of metal struck the plaintiff on the head ? Nobody saw it; it is only by way of inference. Now, are the inferences which are to be drawn from such evidence as you have fairly strong enough for you to say that you are satisfied that that did hit the plaintiff? If you are, then how did it come to fall, or from whose hands did it fall? If it did not fall from the hands of some employee of this defendant company, then of course they have nothing to do with it, and should not be made liable. If it did, then you must be satisfied that it was in consequence of some negligence, either in the way in which the handle was placed in the head, or the use that was being made of it at the time. You will take such evidence as you have here, the burden being upon the plaintiff to satisfy you of that negligence of the defendant, and if yon say that you are fairly satisfied of that, then the first proposition which it is necessary for the plaintiff to prove has been proved. If not, why, that is the end of the case for the plaintiff.”</p> <p>The defendant excepted to the refusal of the judge to give the instruction requested, and to a portion of the charge of the judge including the passage above quoted.</p> <p>The jury returned a verdict for the plaintiff in the sum of $2,000, and by agreement of the parties, the judge reported the case for the consideration of this court. If the ruling that upon all the evidence the plaintiff could not recover should have been made, or the instruction asked for by the defendant should have been given, or if the instructions given were incorrect, judgment was to be rendered for the defendant; otherwise, the verdict was to stand.</p>

<p>Street Railway, Duty as to repairing streets.</p> <p>Pub. Sts. c. 113, § 32, requiring a street railway company to keep in repair “ the paving, upper planking, or other surface material of the portions of streets ” occupied by its tracks and, in case of unpaved streets, an additional space of eighteen inches upon each side of its tracks, does not impose upon the company the duty of filling an excavation made by another. It is only when the excavation has been filled by the municipality, or other party responsible for the safety of the street, to the plane where surface material is required, that the duty of the railway company begins. Therefore, if a trench is dug in an unpaved street within eighteen inches of the tracks of a street railway company by a person acting under a permit from the city, for the purpose of constructing a sewer in the street, the railway company is not charged with the duty of keeping in repair any portion of the street within the lines of the trench until it has been filled to a point where a surface is required, and in the meantime the duty of protecting travellers by guards or otherwise is upon the city.</p>

<p>Contract for $510 paid to the defendant upon a bond to convey certain land on Acushnet Avenue in New Bedford to one Anderly, assigned by Anderly’s administrator to the plaintiff. Writ dated June 13, 1900.</p> <p>In the Superior Court the case was heard upon agreed facts by Lawton, J., without a jury. The bond was dated April 27, 1896. The preamble and condition were as follows:</p> <p>“ The condition of this obligation is such, that 'whereas the said obligor has agreed to sell and convey unto the said obligee a certain parcel of real estate, situated in New Bedford and bounded as follows, namely, [Description]. The same to .be conveyed by a good and sufficient deed of the said obligor, conveying a good and clear title to the same, free from all encumbrances. And whereas for such deed and conveyance it is agreed that the said obligee shall pay the sum of thirteen hundred dollars, of which three hundred dollars have been paid this day, and one thousand dollars are to be paid in cash upon the delivery of said deed at any time within three years from the date of this bond, with interest at the rate of six per cent per annum, the interest to be paid semi-annually, also the obligee to pay the taxes after 1896. Now therefore if the said obligor shall, upon tender by the said obligee of the aforesaid cash, at any time within three years from this date, deliver unto the said obligee a good and sufficient deed as aforesaid, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.”</p> <p>The lot contained about twenty-seven square rods of land. On December 12, 1899, the city of New Bedford took for a widening of Acushnet Avenue a strip of this land varying in width from fourteen to seventeen feet and containing about six square rods.</p> <p>The defendant tendered to the plaintiff a deed which conveyed a good and sufficient title to the property described in the bond free of all incumbrances except that created by the taking of the strip of land by the city. This the plaintiff refused to accept.</p> <p>The defendant requested certain rulings which were refused by the judge. The substance of those that are material is stated in the opinion.of the court. The judge found for the plaintiff in the sum of $549.95; and the defendant alleged exceptions.</p>

, in the Probate Court for the county of Worcester upon the petition of the administrator of the estate of Abby W. Taft, late of Uxbridge, for a partial distribution of that estate. Petition filed September 6,1901. The case came on to be heard upon the papers and agreed facts before Barker, J., who at the request of the parties reserved it for the determination of the full court, such disposition to be made thereof as law and justice might require.

<p>Tort by a passenger on an excursion train of the defendant, for having his fingers crushed between the bumpers of the platforms of two cars when thrown down by the jar from a sudden backing of the train. Writ dated September 25,1899.</p> <p>At the trial in the Superior Court, before Graskill, J., the facts appeared in evidence which are stated in the opinion of the court. The plaintiff described the accident as follows: That when the train was on a steep up grade it stopped; that the plaintiff “ waited for a few seconds, then everybody moved to the platform to see what was the matter; that he moved to the door the same as everybody else; that he got as far as the threshold of the door; that he did not go upon the platform at any time; that after he got as far as the threshold, he stood there; that the next that occurred was, it seemed to him, as the brakes were let loose, the train went back with a jar, it seemed as if there had been two or three freight cars in front of it and ran into it, it jarred so much; that he never felt any jar like it on a passenger train in his life; that the effect that this jar had upon him was something that shook him all up and threw him down, threw him right forward; ” with the result, that his hand was caught between the bumpers, and he received the injury. The plaintiff later stated: “that he should judge he had been standing on the threshold about fifteen seconds when this motion came, which threw him down.”</p> <p>At the close of the evidence, the defendant asked the judge to make the following rulings: 1. There is no sufficient evidence to warrant a verdict for the plaintiff. 2. There is no sufficient evidence to warrant a finding that the plaintiff was in the exercise of due care. 3. There is no sufficient evidence to warrant a finding that the defendant was guilty of any negligence causing the injury. 4. The plaintiff fails to show that he was standing in or near the open door of the car through any necessity, or for the want of a seat inside the cars, and therefore cannot recover. 5. If the plaintiff could have obtained a seat in the cars in the forward part of the train, he was not justified in standing in or near the open door of a car so as to be thrown out upon the platform by a motion of the train. 6. If the plaintiff passed through several cars which were filled with passengers, and then stopped and stood in or near an open door of .a car, intending to ride there, and was thrown down and injured by a motion of the train, he cannot recover unless he proves that there was no seat which he could have obtained in other cars on the train, where he would have been safe from, such an accident as this. 7. The plaintiff’s evidence fails to prove anything more than that he elected to stand or ride in or near an open door of a car, and was thrown off his feet and injured, when he might have found a seat inside the cars on the train where he would not have suffered such an injury.</p> <p>The judge declined to give the first four rulings and the seventh, and declined to give the fifth and sixth in the form in which they were presented. Upon the subject involved in the fifth and sixth rulings, the judge instructed the jury as follows : “ So you have the right to take into consideration therefore, in passing upon the due care of the plaintiff as to his age» as to what opportunities for knowledge were possessed by him, what his position was, and what was afforded him by the railroad as to a bettering of his position, because if a railroad company furnishes for its patrons ample and sufficient accommodation for each of its passengers to be seated, then the duty of the passenger is ordinarily as he is riding to occupy a seat, and not to put himself in a position upon the platform, for instance, of a car, unless you say it is a reasonably necessary thing when ,he is seeking in a proper and careful, and reasonably prudent way to obtain a seat. It is not a justifiable thing for a passenger thus provided with seats to stand in a place of greater danger, or occupy a position of greater danger. The test, of course, in all these cases is the act of the ordinarily prudent and careful person under the given circumstances. First then here, were there vacant seats upon this train which the plaintiff might have occupied ? If there were none, then it is for you to say whether if he occupied a standing place convenient, it was a failure on his part to exercise due and proper care. If there were seats provided, then what means did the plaintiff take to ascertain as to those seats ? How far did he go ? According to his own statement, he went seven or eight cars. He looked forward. He says he could see to the front of the train. How far could he see ? How far did he see ? If at that point, he or a person of ordinary intelligence and care, from the examination, from the knowledge which he then had, reasonably would come to the conclusion that from his view in front the same condition existed as in the cars that he had already passed through, if that condition was one of congestion, no vacant seats which could be had, then it is for you to say whether it was a prudent and careful act upon his part to stand in or near an open door. Was any information given to him by any of the officials in charge, either in whole or in part of the train? Was there any request upon their part that he should go forward, or go anywhere, and occupy seats provided? As you shall determine with reference to that, so it will be made an easier matter to determine whether he was in the exercise of due care. If, however, there were seats, and he ought to have known that there were, and he voluntarily stopped in his way, abandoning any desire to obtain a seat, and intending to ride upon the platform, that would not be upon his part conduct that could be called due care. But, in passing upon that, as I have already said, you are to take into consideration all the circumstances, all. the situations, all the knowledge, either which he had, or which he ought to have had, all the information given him by the officials or by those in charge either in whole or in part of the train of cars. And, according in view of that, and with the statement which I have made to you, it is for you to say whether the plaintiff was in the exercise of due care.”</p> <p>The defendant excepted to the refusal to give the first four rulings and the seventh, and to the modifications of the fifth and sixth rulings. The j ury returned a verdict for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.</p>

<p>Bill in equity by a mortgagee of personal property against the messenger and the assignee in insolvency of the estate of one Hormidas Le Blanc, to enforce the payment of the mortgage debt out of the proceeds of a sale of the mortgaged property in the hands of the assignee, filed April 27 and amended December 7,1898.</p> <p>The case is stated by the court. The plaintiff’s consent in writing to the sale of the mortgaged property by the messenger was as follows: “I, Joseph A. Labbe of Fall River, County of Bristol and Commonwealth of Massachusetts, hereby consent to the sale of stock of goods, notions, hardware, fixtures and all other things in store No. 1348 Pleasant Street in said Fall River; and to sale of horses, carriages, wagons, harnesses, now in barn on leased land in rear of No. 1348 Pleasant Street in said Fall River; all said goods being the same as mortgaged to me by Hormidas Le Blanc. I agree to sale by Samuel Hadfield and agree to make him my agent to sell my interest in said goods, meaning especially to sell my right to said goods as mortgagee, providing the money realized by said sale to be held first subject to my mortgage, and to be deposited by said Hadfield in the Insolvency Court as Messenger of said Le Blanc, insolvent debtor. Joseph A. Labbe.”</p> <p>Below this was written and signed the plaintiff’s assent to the turning over of the proceeds of the sale of the mortgaged property by the messenger to the assignee, as follows: “ I hereby authorize Samuel Hadfield to turn over to A. S. Phillips, Assignee, the money held by him from said sale. Joseph A. Labbe.”</p>

<p>Limitations, Statute of, Special of two years, New assets. Executor.</p> <p>In an action against an administrator brought more than two years after his giving bond and notice of his appointment, it appeared, that the defendant’s intestate was in the business of making and selling shoe machinery with one M. After the intestate’s death M. carried on the business with the assistance of the defendant, and profits were received from the business by the defendant more than two years after his giving bond and less than two years from the date of the writ. Held, that the profits constituted new assets within the meaning of Pub. Sts. c. 136, § 11. The defendant went beyond his legal duty in keeping the intestate’s money in the business and taking the risk of making himself personally liable for debts incurred; moreover, the profits were in pari due to his personal exertions; so that the profits were assets for which he previously had not been liable as administrator, and not a new shape or an increment or ordinary income of existing assets.</p>

<p>Contract, Parties. Landlord and Tenant. Assignment.</p> <p>A lessor agreed in writing with his lessee, that the lease might be assigned to a person named and that the assignee should be under no personal liability by reason of the assignment or his occupation thereunder. On the same day the lessee made the assignment, which stated that it was made in accordance with the terms of an agreement between the lessor and lessee and stipulated that the assignment should in no way create any personal liability on the part of the assignee to the lessee or to any other person. Thereafter the lessor sued the assignee on the covenant to pay rent and taxes. Reid, that the two agreements were to be construed together, and that the lessor was precluded from enforcing any claim against the assignee for payment of the rent or taxes.</p>

<p>Contract by the administrator of the estate of Elbridge M. Pearson for the breach of an agreement to pay off a certain mortgage which the defendant assumed as part of the consideration for certain land conveyed to him by the plaintiff’s intestate. • Writ dated January 9, 1900.</p> <p>In the Superior Court the case was heard on agreed facts by Bond, J. The defendant requested rulings, first, that on the facts stated the plaintiff could not recover, and second, that if the plaintiff could recover anything, he could recover only nominal damages. The judge refused to make either of these rulings, and found for the plaintiff in the sum of §13,719.60 and gave judgment for that amount. The defendant alleged exceptions, and also appealed from the judgment.</p> <p>The same mortgage and deed were before the court in the case of Pearson v. Bailey, 177 Mass. 318. The covenant of the mortgagee set up in the defendant’s answer and referred to in the opinion of the court was as follows:</p> <p>“ Know All Men that I, Marcia A. Norris the mortgagee named in a certain mortgage given by Elbridge M. Pearson to me dated September 26th 1895 recorded with Essex South District Deeds Book 1457 Page 70, in consideration of One dollar to me paid by Jacob L. Bailey of Cambridge in the Commonwealth of Massachusetts, the receipt whereof is hereby acknowledged, do hereby for myself, my representatives, and assigns, covenant and agree that I .or they will not, at any time hereafter, sue, or enforce against, said Elbridge M. Pearson, or his administrators, or his estate in probate (aside from any property covered by said mortgage) any claim for the payment of the note secured by said mortgage — which note was signed by said Elbridge M. Pearson and dated September 26th 1895, and promised to pay the sum of Twelve thousand dollars in five years from said date with interest semi-annually at the rate of five per cent per annum; but I and my representatives and assigns will look wholly to the mortgaged property for the satisfaction of the debt and claim secured by said mortgage.</p> <p>“ It is not my intention however hereby to release or impair any claim on or title to the property conveyed by said mortgage, nor the right to enforce said mortgage against said property, and this agreement is upon condition that its legal effect is not to release or impair any claim or title the holder of said mortgage has or may have in or to the mortgaged property, and if the legal effect of this agreement is to affect or impair any claim or title as aforesaid, then this agreement is null and void.</p> <p>“ Witness m'y hand and seal this third day of May A. D. Nineteen hundred.”</p> <p>This was signed under seal by Marcia A. Norris, acknowledged before a justice of the peace, and certified to have been recorded with the Essex deeds.</p>

<p>Tobt under Pub. Sts. c. 52, for injuries alleged to have been caused by a defect in Smith Street in Boston consisting of a catch basin of a sewer negligently left open and uncovered. Writ dated June 14, 1899.</p> <p>In the Superior Court, Cfaskill, J. directed a verdict for the defendant, and- reported the case for the consideration of this court. If the ruling was correct judgment was to be ordered for the defendant; otherwise, judgment for the plaintiff for $500.</p>

<p>Tort for injuries from the plaintiff falling by reason of a ridge of ice on the sidewalk adjoining a building owned and controlled by the defendant caused by water coming from a spout attached to the building. Writ dated January 17,1900.</p> <p>At the trial in the Superior Court, before Stevens, J., the jury returned a verdict for the plaintiff in the sum of 1800; and the defendant alleged exceptions.</p> <p>The defendant’s request for a ruling numbered 13, which is mentioned near the end of the opinion but not stated, was as follows: “ Even if there was a hole or leak in the pipe or conductor in question from which water escaped and formed an accumulation of ice upon the sidewalk, still the defendant is not liable if he used ordinary and reasonable care in providing a proper and suitable pipe in the first instance and afterwards exercised ordinary and reasonable care to keep it in suitable repair.”</p>

<p>Estoppel, By conduct.</p> <p>In an action to recover a commission for collecting rents and on sales of real estate, it appeared, that the plaintiff and the defendant’s testator were brothers, and tenants in common of certain real estate, that the plaintiff took charge of the property with the express agreement that his brother should pay him five per cent of money collected for him from real estate, that thereafter during his brother’s life the plaintiff collected the rents and paid them to his brother in full without deducting any commission, and did the same with the proceeds of a sale of land, that after the brother’s death, the defendant, administrator with the will annexed of the brother’s estate, called on the plaintiff for an account and the plaintiff presented one in which nothing was said as to commissions, and the defendant did not know of the agreement between the brothers that commissions should be paid. Held, that on these facts a finding, that the plaintiff was not estopped from claiming and recovering the five per cent commission on rents collected and the proceeds of land sold, was justified. Payment by the plaintiff after making his contract of the full rent and of the whole proceeds of land sold did not necessarily import that there was not a counterclaim for the commission.</p>

<p>Agency, Scope of authority. Evidence, Inference from not calling witness.</p> <p>The acts of an agent or servant are not evidence of his authority.</p> <p>In an action for an assault committed by the defendant’s servant, where the only issue was whether the servant acted within the scope of his authority, the servant was present in court and identified but was not called as a witness by either the plaintiff or the defendant. The presiding judge refused to rule, that, in connection with the servant’s acts, the fact that the defendant did not call him to deny it was evidence of his authority, and left it wholly to the jury to say whether under the circumstances any inference should be drawn as to what the servant’s testimony on the point of his authority would have been. Held, that this was as much as the plaintiff was entitled to. The judge could not discriminate against the defendant for not doing what it was equally in the power of either party to do.</p>

<p>Practice, Civil. Verdict. Bailment, Duties of bailee of horse.</p> <p>Where there is a general finding for the plaintiff on several counts for the same cause of action, it is sufficient to sustain the finding if the evidence sustains it upon one of the counts.</p> <p>One, who, having in his charge the horse of another to keep and use, without the exercise of proper care lets him on a very hot day to a stranger who overdrives him so as to cause his death, may be found to be liable either on a count in contract for breach of an agreement to keep and use the horse carefully, or on a count in tort for negligently keeping and using him.</p>

<p>Agency, Broker’s commission.</p> <p>If one employs a broker to procure for him a purchaser of certain land, and the broker procures a purchaser willing to buy it on terms accepted by the principal, the broker none the less earns his commission if the principal is only a part owner of the land, or if he owns none of it and afterwards fails to acquire it.</p> <p>One employed a broker to procure a purchaser for two hundred and ninety thousand square feet of land to be taken from a certain parcel containing five hundred thousand square feet and to be divided as to front and back lands from the whole parcel as equally as possible. The broker procured a purchaser willing and able to carry out these terms and the principal declared the offer to be satisfactory to him. The principal was unable to give a title and the sale was not made, and he then contended that no commission was earned by the broker because the minds of the principal and the purchaser never met on the question of what land was to be conveyed. Held, that the broker earned his commission.</p>

<p>Evidence, Materiality. Bills and Notes. Payment.</p> <p>In an action by a bank against an indorser of the promissory note of a corporation indorsed also by the payee to the plaintiff which had discounted it, evidence that the defendant and the payee were directors of the corporation and that a receiver had since been appointed for it, rightly was excluded as immaterial.</p> <p>In an action by a bank against the first indorser of a promissory note also indorsed by the payee to the plaintiff which had discounted it, it appeared, that after the liability of the defendant and the payee had been fixed by a protest for non-payment and after the bringing of the action, the plaintiff obtained as security for the note a personal demand note of the payee indorsed by his father and that afterwards the father at the request of the plaintiff replaced this note by a deposit of cash to be held as security for the note in suit. Meld, that these facts constituted no defence, as the receipt of money from a third person not as payment, but merely as security, did not affect the rights of the plaintiff as against the defendant.</p>

<p>Carrier, Delivery. Bill of Lading. Sale. Practice, Civil. Evidence, Proof of foreign law.</p> <p>One who declares on a contract contained in a bill of lading cannot in support of his action take the ground that the bill of lading is void.</p> <p>On the argument of exceptions the court cannot take notice of the law of another State not proved at the trial.</p> <p>When a temporary receipt is issued by a carrier in contemplation of the substitution of a bill of lading, the bill of lading when issued is the first and only contract between the parties.</p> <p>In an action against a carrier for loss of goods by, fire, it appeared, that the defendant was a railroad company having a pier at the end of its line, that a portion of this pier on one side of the defendant’s tracks was used and occupied for the purpose of receiving goods by the steamship company to which the bill of lading required the goods to be delivered, and that the goods were unloaded from the defendant’s cars upon this portion of the pier, that the superintendent of the steamship company had an office there, that previously the defendant had given the steamship company notice by a letter, which remained unanswered and seemingly acquiesced in, that unloading steamship freight at that place constituted delivery on the defendant’s part and thereafter it assumed no responsibility. Held, that these facts warranted a finding of an actual delivery by the defendant; that it might have been found that it was understood in advance that as soon as goods were left on the wharf by the railroad company the steamship company was free to take them at its pleasure, and that it was expected to take notice of their presence and to assume responsibility for them without more special notification.</p> <p>In an action against a railroad company for loss of goods by fire, it appeared, that the bill of lading stipulated that the defendant should not be liable “ in any other respect than as warehouseman, while the said property awaits further conveyance,” and that no carrier should be liable “ after said property is ready for delivery to the next carrier.” The goods were unloaded from the defendant’s cars upon a pier belonging to the defendant to be taken thence by a steamship company. The defendant had contracted only for itself and was not bound to carry beyond its own road. Semble, that there was nothing contrary to public policy in the above stipulation and that under it the defendant's liability as a common carrier had ceased, and it was liable only in case of negligence.</p> <p>When a shipper of goods draws on a bank for the full amount of the "purchase money, attaching to his draft the bill of lading indorsed in blank, and receivés the money, whether he retains the general property in the goods is still an open question in this Commonwealth.</p>

<p>Tort against George B. Taylor, Abbie E. Taylor and Miss M. Hastings for the alleged conversion of certain clothing and furniture taken from the room of the plaintiff in an apartment house belonging to the defendant Abbie E. Taylor. Writ in the Municipal Court of the City of Boston dated April 14, 1899.</p> <p>On appeal to the Superior Court, the case was tried before AiJcen, J. The defendant Abbie E. Taylor requested the judge to rule, that upon the evidence the plaintiff could not recover against her. The judge refused so to rule.</p> <p>The jury returned a verdict for the plaintiff against all the defendants in the sum of $274.57; and the defendant Abbie E. Taylor alleged exceptions.</p>

■ Contract under St. 1890, c. 487, for money paid on wagering contracts. Writ dated February 16, 1899. At the trial in the Superior Court, before Mason, C. J., the plaintiff put in evidence fifteen contracts upon which he had made payments to the defendants amounting in all to $3,320.

Contract by an attorney at law against a trustee in bankruptcy for $75 had and received by the defendant to the plaintiff’s use. Writ in the Municipal Court of the City of Boston, dated May 19, 1899.

<p>Contract by a street railway company upon a policy insuring the plaintiff “ against loss from liability to every person who may, during a period of twelve months, from twelve o’clock meridian of August 18, 1898, accidentally sustain bodily injuries while travelling on any railway of the insured, or while in a car or upon the railway bed, or other property of the insured, under circumstances which shall impose upon the insured a common law or statutory liability for such injuries,” to recover sums of money which the plaintiff had paid under its statutory liability for the deaths of certain persons named who died instantly and without conscious suffering in consequence of bodily injuries accidentally sustained while travelling on the railway of the plaintiff and in one of its cars. Writ dated August 13, 1900.</p> <p>The defendant demurred, and the case came on to be heard in the Superior Court, before G-askill, J., who overruled the demurrer and ordered judgment to be entered for the plaintiff in the sum of $14,963.91, and, at the request of the parties, reported all questions of law raised upon the declaration and demurrer for the determination of this court. If no error was found, final judgment for the plaintiff was to be entered for the sum named with interest. If error was found, final judgment was to be entered for the defendant.</p> <p>The case was submitted on briefs at the sitting of the court in September, 1901, and afterwards was submitted on briefs to all the justices.</p>

<p>Tort by an employee in a pump factory against his employer for injuries caused by the fall of a sled which was being hoisted by a derrick, while the plaintiff was sitting on the sled to balance it by order of one Johnson, a superintendent of the defendant, the first count being at common law and three others under the employers’ liability act. Writ dated March 18, 1899.</p> <p>At the trial in the Superior Court, before Maynard, J., it appeared, that the defendant was a corporation organized under the laws of New Jersey, that the defendant had executed a power of attorney, as required by St. 1884, c. 330, appointing the commissioner of corporations its attorney, upon whom all lawful processes in any action or proceeding against the corporation in this Commonwealth might be served; that a notice of the time, place and cause of the injury, as required by St. 1887, c. 270, § 3, was served by the plaintiff upon the commissioner of corporations, and the commissioner sent to the defendant a copy of this notice within thirty days of the happening of the accident in the manner stated in the opinion of the court. This was the only notice given within the thirty days.</p> <p>At the close of the evidence, the plaintiff elected to go to the jury upon the third count, alleging negligence on the part of the defendant’s superintendent, and upon the first count at common law, alleging negligence on the part of the defendant in setting the plaintiff to work in a dangerous place without warning him of the dangers to which he was exposed. The judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Statute, Construction. Constitutional Law, Assessments.</p> <p>St. 1896, e. 516, § 14, provided that the board of street commissioners of the city of Boston should, within two years after the completion of tile south union station, assess upon any real estate in Boston which in the opinion of that board received any benefit and advantage from "the location and construction of that station, Summer Street and Cove Street, beyond the general advantage to all real estate in the city, a proportionate part of one half of the expense incurred by the city therefor, but in no case exceeding such benefit and advantage. The act created a corporation which was to build and own the station. The city was to pay for the changes in the streets. The station could not be used without the extension of the streets and such extension was unnecessary apart from the building of the station. Hdd, that the above provision of the act treated the improvement as a unit, and in making an assessment thereunder it was right to lump the cost of both streets and the benefit of the whole improvement, and that the statute thus construed was constitutional.</p> <p>The building of the south terminal station in Boston and providing access to it constituted a purpose sufficiently public to justify the imposition by statute of a special assessment.</p> <p>When property is increased in value by the building of a union railroad station and its approaches and the source of the benefit is the direction given to public travel along a special channel, this is a proper subject of special assessment.</p> <p>It does not invalidate the statutory imposition of a betterment assessment, that the special benefits are only incidental to an improvement made for the benefit of the public in general, when the act authorizing the assessment shows that the incidental consequences were contemplated.</p> <p>St. 1896, c. 516, § 14, providing for the assessment of betterments for one half the expense incurred by the city of Boston in extending Summer and Cove Streets as required by that act in order to provide approaches for the south terminal station, contained a proviso, that the terminal company should convey in fee to the city certain lands required for the widening and extension of those streets. The streets had been laid out over these lands before the assessment was made ; but the deed from the terminal company was not given until afterwards. Held, that the proviso merely attached a subsidiary requirement, the performance of which was not a condition precedent to the right to assess.</p>

<p>Contract, Consideration, Construction. Frauds, Statute of.</p> <p>The plaintiff owned a large pulp mill and had on hand over three hundred and forty tons of scrap iron in its mill and mill yard which it wished removed, two thirds of it ready to he moved away and the remainder mixed with articles which the plaintiff could use and did not want to sell. The defendant, after sending an agent to the plaintiff’s mill to look at the iron, made the following offer in writing : “ We hereby agree to pay you $12 per ton of 2,000 lbs., spot cash, f. o. b. Berlin, for all your iron which you may desire to sell, both cast and wrought, also all cables. This offer covers everything in the line of iron, whether located in your mill or on your premises, except galvanized iron, and is to be taken where found, we to assume all costs of removing the same, you to have privilege of indicating what you desire to have us take and of reserving what you wish. We furthermore agree to remove promptly all the iron which you wish us to take after acceptance of the proposition by you, and guarantee not to do any damage whatever nor to interfere with your operations or work in any way.” An acceptance was written on the same paper by the plaintiff’s superintendent. The plaintiff then requested the defendant to take away the iron, which he refused to do. The plaintiff had it taken away by another at a loss, and sued for the difference in price. Held, that there was a binding contract, by which the plaintiff was bound to sell to the defendant at $12 a ton whatever iron then on the premises was sold to anyone, and the defendant was bound to remove promptly on request such iron as the plaintiff selected for sale and to pay $12 a ton for it. Held, also, that the iron which the defendant agreed to buy was described sufficiently to satisfy the statute of frauds. Held, also, that the clause that the defendant should pay $12 per ton “ spot cash, f. o. b. Berlin ” must be construed with the subsequent clause “ we to assume all costs of removing the same,” and that construed together the two clauses meant that the defendant was to put the iron on the cars and bear the expense of doing so but no other expense. -</p>

<p>Petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Worcester in levying certain betterment assessments on land of the petitioner for the widening of West Boylston Street in Worcester, filed May 12, 1900.</p> <p>The case was heard by Holmes, C. J., who, at the request.of the petitioner, reported it for the full court as follows:</p> <p>“The petitioner wished to offer evidence that West Boylston street was not substantially completed, but I ruled that in this proceeding I could not go behind the record set out in the answer. I also ruled that the assessment was levied in time, and that it was not void because it exceeded one half of the adjudged benefit in the case specified by one half of one cent, and ordered the petition dismissed.”</p> <p>The petitioner alleged exceptions, of which the only one argued related to the ruling last stated.</p>

<p>Slander, Justification.</p> <p>In an action for slander in calling a married woman a dirty old whore, a justification is not made out by proof that before the words were spoken the plaintiff had committed adultery, if the jury find that the words meant more than a charge of adultery.</p>

<p>Contract for the amount of certain assessments for street watering paid by the plaintiffs under protest. Writ in the Municipal Court of the City of Boston dated November 10, 1900.</p> <p>On appeal to the Superior Court, the case was tried before Mason, C. J., without a jury. The judge found the following facts: The plaintiffs owned the lots of land named in tne declaration. They were situated in outlying districts of the city of Boston, but where the houses were not widely separated. All the lots were unoccupied, although houses had been erected on four of them, the plaintiffs holding them for sale. Assessments for street watering for the year 1900 were laid by the defendant upon all of these lots, in proportion to the linear feet of frontage •upon the streets watered, in accordance with St. 1897, c. 419, and St. 1899, c. 366. The assessments were made separately on each lot, and separate bills were presented to the plaintiffs. On October 31, 1900, the plaintiffs paid the assessments under protest. The lots received no benefit from the watering of streets for the year 1900. The plaintiffs paid, voluntarily, the assessment on another lot of land in Boston owned and occupied by them as a residence, for watering the adjacent street during the year 1900, the bill for which was presented separately. The last named lot was not included in the schedule annexed to the declaration.</p> <p>The defendant requested the judge to rule that, on all the evidence, the plaintiffs could not recover. The judge declined so to rule, and found for the plaintiffs for the amount claimed; and, at the request of the defendant, reported the case for the consideration of this court. If the ruling requested should have been given, judgment was to be entered for the defendant; otherwise judgment was to be entered for the plaintiffs for $68.91, with interest from October 31, 1900.</p>

<p>Contract to recover $545.42 with interest thereon from November 1, 1900, being the amount of the increase of the taxes levied upon the premises numbered 17, 19, 21 on School Street in Boston, for the year 1900, above the amount of taxes levied upon these premises for the previous year. Writ dated December 4, 1900.</p> <p>At the trial in the Superior Court, before Bond, J.,' the following facts appeared: By a lease dated January 21, 1899, the plaintiff let to one Joseph D. Valiquet, for a term ending July 31, 1903, the first and second stories, room 7 on the third story, and the basement of the building numbered 17 and 19 on School Street in Boston for an annual.rent of $8,180. On November 24, 1899, Valiquet assigned this lease to the defendant, and the plaintiff, as lessor, consented to the assignment. Afterwards, by a lease dated December 1, 1899, the plaintiff let to the defendant for a term ending July 31, 1903, the rooms numbered -8, 9, 10, 11, 12, in the building numbered 19 and 21 on School Street, in Boston. “ Also, all the rooms on the fourth and fifth floors of said building, excepting, however, from the premises hereby leased, the closet on the third floor on the westerly side of the hallway in said building,” at an annual rental of $1,450. The two leases included the entire building except the closet mentioned in the last lease.</p> <p>The last mentioned lease contained the following provisions:</p> <p>“It is understood and agreed that the lessee shall make all repairs of every name and nature of said premises, both inside and outside, during the continuance of this lease, or any renewal thereof, as hereinafter set forth.</p> <p>It is also agreed and understood by the parties hereto that in case the taxes now levied on said premises should be increased above the present assessment, that the lessee shall pay such excess on the first day of November, in each and every year during the continuance of this lease, or any renewal thereof.”</p> <p>Except as above, the lessor by both leases was to pay the taxes. The taxes upon the whole premises covered by both of the leases, as assessed for the year 1899, were upon the valuation of $120,000, as follows: $104,700 land, $15,300, buildings, and amounted to $1,573.86. The taxes assessed upon the same premises for the year 1900 were upon the valuation of $144,000, as follows: $128,600, land, and $15,400 on buildings, and amounted to $2,119.28.</p> <p>On the foregoing evidence, the defendant requested the judge to rule that the clause in the second lease, as a matter of law obliged the defendant to pay not the entire increase of taxes on the whole premises, but only such portion thereof as the rent reserved in that lease bore to the entire rental value of the whole premises.</p> <p>The judge declined so to rule and instead ruled, that as a matter of law the words “the taxes now levied upon said premises,” referred to the taxes upon the entire building and land under it, and not simply to that portion of the building included in the second lease. Upon the foregoing ruling the parties consented, saving all their rights, that the judge might direct a verdict for the plaintiff for $545, the amount named in the declaration, and this was done. The defendant alleged exceptions.</p>

Tort for malicious prosecution and slander. Writ dated July 81,1899. At the trial in the Superior Court, before Sherman, J., the jury returned a verdict for the plaintiff in the sum of $5,000; and the defendant alleged a single exception, which is stated by the court.

<p>Tort for injuries by reason of a fall caused by the plaintiff catching his heel on a nail protruding from a step in an aisle of the gallery of a theatre under the management and control of the defendant. Writ dated May 27, 1899.</p> <p>In the Superior Court, G-askill, J. directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

Petition under Pub. Sts. c. 142, §§ 13-16, St. 1889, c. 266, by the executor named in an instrument purporting to be the will of Julius Adams, for leave to compromise a controversy as to the validity of the will, between the persons claiming as devisees and legatees and the persons claiming under the statute regulating the descent and distribution of intestate estates, filed July 24, 1900.

<p>Bill in equity by a creditor of one Albert Pitts, deceased, against the executors under his will praying that certain shares of stock in the hands of the defendants as individuals and alleged to belong to the estate of Pitts should be applied to the payment of the plaintiff’s claim, filed in the Supreme Judicial Court June 10, 1901.</p> <p>There were two defendants, each of whom demurred. The case was heard by Hammond, J., who made a decree sustaining the demurrers and dismissing the bill on the ground that the-plaintiff had a plain, adequate and complete remedy at law. The plaintiff appealed.</p>

<p>Bill in equity to restrain the defendant from soliciting trade from former customers of John A. Webster and Company, an expired partnership which had consisted of the defendant and three of the plaintiffs, and praying also for an account, filed December 21, 1900.</p> <p>The partnership agreement was as follows:</p> <p>“ Articles of copartnership made and concluded this 1st day of April, 1898, by and between John A. Webster of Boston, Herbert E. Webster of Lowell, Frank E. Baker of Lowell, and Lewis O. Stoker of Saugus. Said parties have agreed to associate together for the purpose of carrying on the business of manufacturing, buying and selling druggist’s glassware and sundries. The style of said partnership shall be John A. Webster & Co., and shall continue for a term of two years from April 1,1898, except in case of the death of either of said partners within said time, as hereinafter provided. Said John A. Webster is the proprietor of the entire capital stock of said copartnership. All profits which may accrue to said copartnership shall be divided, and all loss happening to said firm from any cause, and all expenses of the business, shall be borne by said parties in the following proportions: John A. Webster, one half: Herbert E. Webster, one sixth: Frank E. Baker, one sixth: and Lewis 0. Stoker, one sixth. Said Herbert E. Webster, Frank E. Baker, and Lewis O. Stoker to devote their entire time and attention to the business of said firm as salesmen. Said John A. Webster shall have entire and exclusive charge of buying merchandise, receiving and paying money for or on account of said firm, and the right to draw checks in the name of said firm. All of the property, as well as the transactions and accounts of said firm, shall be kept in regular books at the place of business of said firm in Boston, and shall be open at all times for the inspection of either party or their legal representatives.”</p> <p>After certain provisions not material, the agreement continued as follows:</p> <p>“ Upon the termination of said partnership by limitation, said John A. Webster will sell to said Herbert E. Webster, Frank E. Baker and Lewis O. Stoker, jointly, or to such of them as then survive, the property and assets of said firm, after the determination and payment of the profits thereof, upon the receipt of a sum equal to the value of such property and assets as it appears by the books of the firm, provided said Herbert E. Webster, Frank E. Baker, and Lewis O. Stoker, or such of them as then survive, have given notice in writing to said John A. Webster at least three months prior to the termination of said copartnership by limitation that they intend to avail themselves of the right to purchase said business as above provided. If either the said Herbert E. Webster, Frank E. Baber, or Lewis 0. Stoker shall decline to join in the purchase of the copartnership property, then and in that event said John A. Webster will sell to such one or more of the said partners as may signify in the manner aforesaid their desire to purchase the property and assets of the firm on the same terms and conditions as above specified: and in case of their failure to give such notice, or if upon the termination of said copartnership any such notice has been given and they are unable to pay the value of said property and assets, as appears by the books of the firm, in cash, or in security satisfactory to said John A. Webster, then their rights hereinunder, so far as relate to the purchase of said property and assets, shall cease and determine. In case of the death of John A. Webster before the termination of said copartnership by limitation, said copartnership shall be thereby determined, an account shall be taken, and any sums found due either of the other partners on account of his share of the profits hereunder, shall be paid to him, and such payment shall be in full settlement and satisfaction of all the interest of either of said partners in and to the property, assets and good will of said firm. In case of the death of either Herbert E. Webster, Frank E. Baker, or Lewis O. Stoker, before the expiration of said copartnership by limitation, there shall be paid to the representatives of such deceased, the share of the profits to which he is then entitled hereunder: and thereafter the share of the profits which would otherwise have been paid to such deceased, if living, shall be paid to said John A. Webster. Any payment to the representatives of either of said three partners as aforesaid, shall be in full settlement and satisfaction of all the interest of said deceased or his estate in the property and assets of said firm. In witness whereof the parties aforesaid have hereunto set their hands this day and year first above written.” Here followed the signatures of the four partners.</p> <p>The bill alleged that after the expiration of the term of the partnership the plaintiffs Herbert E. Webster, Baker and Stoker purchased from the defendant the property and assets, and good will and accounts, of the firm of John A. Webster and Company, which the defendant conveyed to them by the following instrument:</p> <p>“ Know all men by these presents that I, John A. Webster of Boston in the County of Suffolk and Commonwealth of Massachusetts, in consideration of the sum of forty-four thousand, four hundred and twenty-six dollars and five cents ($44,426.05) to me in hand paid by Herbert E. Webster and Frank E. Baker both of Lowell in the County of Middlesex and said Commonwealth, and Lewis O. Stocker of Saugus in the County of Essex and said Commonwealth, the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer and deliver unto the said Herbert E. Webster, Frank E. Baker and Lewis 0. Stocker, the property and assets belonging to the firm of John A. Webster & Co., the goods and accounts being shown on the inventory and appraisal as made by the receiver and appraisers appointed by the court in the equity case, in which said grantees are the complainants, and said grantor is the respondent, No. 760 and pending in the Superior Court for Middlesex County, meaning and intending hereby to carry out the agreement between the parties hereto, dated April 1st, 1898, reserving herefrom the debts due said firm, and which have been classed as doubtful, and appear upon the dead ledger of said firm, which said doubtful debts are to be collected by the grantees hereto, and an account had between the said grantees and grantor once in every three months; one-half of the sum that shall be collected of said doubtful debts shall be paid to said John A. Webster; and the other half of said doubtful debts shall belong to and be the property of the said grantees. All bills that have been contracted for goods since April 6th, 1900, and the date hereof by said John A. Webster, are hereby assumed and are to be paid by the grantees; and all accounts from the sale of goods between said dates, are to belong to and be the property of said grantees. To have and to hold all and singular the said goods and chattels to the said Herbert E. Webster, Frank E. Baker and Lewis O. Stocker and their executors, administrators and assigns for their own use and behoof forever. And I hereby covenant with the grantees that I am the lawful owner of the said goods, chattels and accounts, excepting the rights that the said grantees have in the same and any claim that may exist for and on account of warranties or contracts heretofore made; that they are free from all incumbrances, excepting as aforesaid ; that I have good right to sell the same as aforesaid, and that I will warrant and defend the same against the lawful claims and demands of all persons, excepting as aforesaid. In witness whereof, I, the said John A. Webster, hereunto set my hand and seal this fifth day of May in the year one thousand nine hundred. John A. Webster (Seal).”</p> <p>The bill as amended alleged, that the defendant, individually, or in connection with the firm of John A. Webster and Son, of which he was a member, had sent, and from time to time con-tinned to send, salesmen among the former customers of the firm of John A. Webster and Company, about Boston and in various places throughout the New England States and the State of New York, and by these salesmen, and by letters, directly solicited trade from the former customers of the firm of John A. Webster and Company, and had thereby obtained, and as the plaintiffs believed continued to obtain, trade from those customers, and thereby unlawfully interfered between those customers and the plaintiffs.</p> <p>The defendant demurred to the amended bill. The case was heard by Hardy, J., who made a decree sustaining the demurrer and dismissing the bill; and the plaintiffs appealed.</p>

<p>Limitations, Statute of. Insurance, Life. Estoppel, By conduct.</p> <p>Pub. Sts. c. 197, § 13, providing, that when an action brought within the period of limitation has been defeated in certain ways the plaintiff may bring a new action for the same cause within one year after the abatement or other determination of the original suit, has no application to a limitation created by contract, as by a provision in a life insurance policy that no action shall be brought thereon after six months from the death of the insured.</p> <p>In an action on a life insurance policy, it" appeared, that, when the proofs of death were furnished, the policy was delivered to the defendant and remained in its possession until the case was tried, no one having asked for its return. The defendant denied its liability on the policy about four weeks after the accident and always thereafter. Held, that there was nothing in these facts to estop the defendant from relying on a provision in the policy that an action thereon must be brought within six months after the death of the assured.</p>

<p>Two actions of contract, one by John M. Gilman and the other by Clarence E. Peters, each suing in behalf of himself and as assignee of others for breaches by the defendant of many separate contracts in writing, each with one person to employ him to work in the State of Utah at a stated sum per month, each claim being contained in a separate count. Writs in the Supreme Judicial Court, dated September 11, 1900.</p> <p>The eases were reserved by Lathrop, J., for the determination of the full court. By the report, it appeared, that the plaintiff in each case took assignments from those for whom he sought to recover, each authorizing him to sue in the name of the assignor, that neither the amount claimed to be due under the contract with the plaintiff in each action nor that claimed to be due any one assignor was sufficient to give this court jurisdiction of the actions, though the aggregate of the sums was sufficient.</p> <p>The assignments were all alike and each contained the expression “ with power to collect the same in my name and as my attorney, hereunto duly authorized to his own use.”</p> <p>The defendant contended that under this form of assignment the plaintiffs could not maintain the actions in their own names.</p> <p>If the actions could be maintained, the cases were to be sent to an assessor to assess the damages; otherwise the actions were to be dismissed.</p>

<p> Equity Pleading and Practice. Fraternal Beneficiary Association. </p> <p>A bill in equity by members of a fraternal beneficiary association against the association, to enjoin the enforcement of certain assessments as illegal, referred to and set forth a copy of by-laws alleged to have been in force nine years before, which did not authorize the assessments complained of. These by-laws conformed to the statutes then in force. Recent statutes authorized the adoption of by-laws providing for the assessments in question. There was no allegation that the by-laws set forth were in force when the bill was filed. Held, that the existence of by-laws under the recent statutes was not negatived, and the case must be considered on the assumption that the corporation might have adopted such by-laws.</p> <p>Under St. 1899, c. 442, § 15, and St. 1901, c. 422, §§ 5,11,15, a fraternal beneficiary association lawfully may adopt by-laws providing for the payment of classified rates for death benefits and for the payment of moneys to the supreme lodge, a foreign corporation, for use in paying death benefits of members of lodges of the same order in other States, without violating any obligation to the holders of certificates issued before the adoption of such by-laws and before the passage of the statutes named.</p>

<p>Equity Pleading and Practice. Corporation. Damages, For statutory taking. Statute, Construction. Waterworks. Falmouth.</p> <p>The report of an officer named as an auditor in a suit in equity is to be treated as a master’s report.</p> <p>Pub. Sts. c. 106, § 46, forbidding the transaction of business by certain corporations before their capital stock has been paid in does not apply to a water company.</p> <p>Public service corporations subject to St. 1894, c. 450, and St. 1894, c. 452, can have no capital stock and no money paid in as capital until an issue is authorized by the board having jurisdiction in the premises. Following Attorney General v. Massachusetts Pipe Line Gas Co. 179 Mass. 15.</p> <p>St. 1898, c. 66, created the Falmouth Water Company and in § 12 provided, that the town of Falmouth should have the right to take the franchise, corporate property, and all the rights and privileges of the corporation, on payment to the corporation of “ the actual cost ” thereof, including in such cost interest on each expenditure from its date to the date of the purchase or taking at the rate of five per cent per annum. The corporation made a contract for the construction of its waterworks, by which they were to be finished on a certain day and the price to be paid for the principal part of the plant was “ the cash market value ” on that day. The plant was built and delivered to the corporation on the day named, and four months later was taken by the town under the above provision. During the period of construction the price of the materials had greatly increased, so that on the day of completion the market value of the plant was much greater than the actual cost to the contractor. There was no fraud and the contract was made in good faith. Held, that the actual cost which the town must pay to the water company for its plant was the actual cost to the water company and included the profit of the contractor, and that, if the contract was unusual and unprecedented, this did not change the obligation, as the statute did not require the water company to make a contract which was usual, and the circumstances might have called for one that was unusual and unpre- • cedented.</p> <p>JJnder St. 1898, c. 66, § 12, giving the town of Falmouth the right to take the plant of the Falmouth Water Company on payment of the actual cost of its franchise, works and property, and providing, that on such taking the town should assume • all of the outstanding obligations of the company, it was held, that the expenses , of the company, incurred in enforcing by a suit in court its legal rights to the price to be paid for the taking under the act, could not be recovered from the town, being neither part of the “ actual cost ” of the franchise, works and property nor one of the “ outstanding obligations ” assumed by the town.</p>

<p>Bill in EQUITY by Percy Parker, administrator with the will annexed of the estate of Elizabeth Simpson, and by Odanathus Simpson, son of Elizabeth, against Verrazano Simpson, another son of Elizabeth, alleging that the defendant had by fraud and undue influence obtained the conveyance and transfer to himself of large amounts of real and personal property belonging to the plaintiffs’ testatrix, and praying, 1. For discovery, by a true statement and account under oath by the defendant of all the real and personal property transferred to him by Elizabeth. 2. That the defendant be restrained from parting with any property obtained by him from Elizabeth. 3. That the defendant be ordered to convey to Odanathus one undivided half of all the real estate conveyed to him by Elizabeth. 4. That the defendant be ordered to transfer and deliver to the plaintiff Parker, as administrator with the will annexed, all personal property received by him from Elizabeth, and to pay to the plaintiff Parker, the value of all such personal property as the defendant cannot transfer and deliver. 5. For other relief. Filed as amended August 31 and amendment allowed September 9, 1898.</p> <p>The case came up on appeals by the defendant from decrees of single justices of this court, overruling his demurrers to the bill, and finding for the plaintiffs on the merits, and from various orders made in the case, and also on appeals by the plaintiffs from, orders overruling their exceptions to the master’s report, and on appeals of both parties from the final decree.</p>

<p>Tort by a workman in a shoe factory against his employer for an injury caused by the plaintiff being struck in the eye by a small particle of wood thrown out by a planing machine, while the plaintiff was operating a rolling machine about fourteen feet away. Writ dated March 18, 1899.</p> <p>At the trial in the Superior Court, Bell, J. at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Tort, at common law, by an employee in the paper mill of the defendant for injuries caused by the fall of a freight elevator •which the plaintiff was engaged in operating. Writ dated November 23, 1899.</p> <p>At the trial in the Superior Court, before Maynard, J., the jury returned a verdict for the plaintiff in the sum of $20,000 ; and the defendant alleged exceptions.</p>

<p>Sale, Conditional.</p> <p>When a purchaser under a contract of conditional sale, providing, that the title shall remain in the vendor until the payment of the last instalment of the price and that he may reclaim the goods upon default, receives the goods and pays some of the instalments and then refuses to make any further payments, the vendor may at his election maintain an action for goods sold and delivered ■ and recover the balance of the price, with interest, as stated in the contract. The words “ hired and received ” and “ rent ” in a contract of conditional sale do not make it a lease.</p>

<p>Negligence, Contributory.</p> <p>One, who coming from an intersecting street drives across the tracks of an electric railway on a street where he knows that cars are running all the time and doés not look to see whether a car is coming merely because he hears no gong sound, is not in the exercise of due care.</p>

<p>Bills and Notes. Evidence, Burden of proof.</p> <p>The words “ value received ” in a promissory note do not affect the rule that the burden of proof is on the plaintiff suing on a note to show that it was given for a valid consideration.</p>

<p>Contract for furnishing steam heat under a contract contained in a lease. Writ dated September 20, 1900.</p> <p>In the Superior Court, the case was heard upon agreed facts by Bishop, J. The clause sued upon is stated by the court. It was agreed, that the plaintiff at all times had been ready to furnish to the defendant steam heat sufficient for the one thousand and seventy-seven feet of radiating surface which existed upon the premises at the time of the making of the lease and the entering into possession by the defendant; and, if it was entitled to charge therefor forty cents per foot, that the total amount chargeable at the end of the heating season of 1899-1900 was $910.50, of which amount the defendant had paid $248.90, leaving a balance due to the plaintiff of $661.60. On the contrary,- if the contention of the defendant was correct, that it was only to pay on the amount of radiating surface actually used by it, and which it was agreed was but five hundred feet, then the total amount chargeable for steam heat at the end of the season was $425, of which amount the defendant had paid $248.90, leaving a balance due of $176.10.</p> <p>Against the objection of the plaintiff, the judge admitted de . bene evidence offered by the defendant, to show that the amount of radiating surface reasonably necessary to heat the leased premises was the amount actually used by the defendant and that before the defendant took out some of the radiators the heat was excessive. Later, on motion of the plaintiff, the judge excluded this evidence as inadmissible under the contract between the parties.</p> <p>The judge found for the plaintiff in the sum of $683.10, the larger sum named in the agreed facts with interest; and the defendant alleged exceptions.</p>

<p>Evidence, Admissions and confessions.</p> <p>A defendant on trial in the Superior Court, on an indictment for breaking and entering a building in the night and committing larceny therein, endeavored to prove an alibi but was convicted. In the preliminary examination in a district court the defendant had been without counsel. He had pleaded not guilty but had offered no evidence. The judge refused to rule that the defendant’s making no defence in the district court was not evidence against him. Held, that the refusal was right, and that the conduct of the defendant at the preliminary examination, in making no attempt at that time to clear himself by stating a defence so obvious if true, could be considered by the jury.</p>

<p>Constitutional Law, Right to trial by jury. Equity Pleading and Practice. Discretion of Court. Frauds, Statute of, Memorandum.</p> <p>The right of trial by jury guaranteed by the constitution of the Commonwealth does not include a right to such a trial in a suit in equity.</p> <p>In a suit in equity to enforce the specific performance of a contract to purchase certain land sold at auction, one of the issues submitted to the jury was, whether the plaintiff procured persons to make fictitious bids by a secret arrangement in fraud of the rights of the other bidders. On this issue the jury disagreed, but disposed of another important part of the case by a verdict. The judge refused to submit the issue again to a jury but discharged it, leaving the question to be tried before a judge. Held, that there was nothing to indicate that the judge in discharging the issue had exercised his discretion unwisely.</p> <p>Where a judge, sitting in equity, sees and hears the witnesses, his findings of fact will not be reversed unless clearly erroneous.</p> <p>In this suit to enforce a contract to purchase land sold at auction, there was conflicting evidence which was held to justify a finding, that the auctioneer signed a memorandum of the sale a short time thereafter in a building near by, to which the parties had resorted for the purpose and while his authority to bind the purchaser still existed.</p>

<p> Lis Pendens. Trustee Process. </p> <p>The pendency of a trustee process will not support a plea to the jurisdiction in an action by the defendant against the trustee in the same court.</p>

<p>Petition of Henry A. Wheeler for a writ of mandamus commanding Edmund W. Wheeler to desist from acting as selectman of the town of Berlin and commanding the two other respondents, as selectmen of that town, to recognize the petitioner as selectman elected on March 4,1901, for a term of three years, filed April 15, 1901.</p> <p>The case was heard by Loving, J., who was of opinion that the writ should issue, but at the request of the respondents reported the case for the consideration of the full court, such order to be entered as law and justice might require.</p> <p>It appeared that the petitioner acted as moderator of the meeting at which he contended that he was elected selectman.</p> <p>The report of the justice, after stating that he had refused to give certain rulings requested by the respondents, continued as follows:</p> <p>“I ruled that St. 1898, c. 548, § 173, applied-to the election of the petitioner as selectman on the fourth day of March, 1901. I ruled that the petitioner was not ineligible to be voted for as a candidate for the office of selectman at the meeting of March 4, 1901.</p> <p>“ I found as a fact that the ballot box was held by the moderator while the ballots were being deposited, that after the balloting was declared closed, he upset the ballot box upon the table and took part in assorting the ballots; and further, that while the ballots were being counted by Sidney B. Carter and James E. Andrews, two of the respondents in this petition who had been appointed tellers by the town clerk before the petitioner was elected moderator, he stood by and corrected an erroneous count made by one of them in one instance, though he did not at that time undertake to count or to handle the ballots which were being counted. I also found that in fact sixty-five ballots were cast for the petitioner for the office of selectman, and sixty-three ballots were cast for Edmund W. Wheeler, and that thereupon the petitioner was declared elected by Sidney B. Carter.. I excluded evidence offered to show that two persons refrained from voting, and that the reason that they refrained from voting was because the moderator was a candidate for the office of selectman.</p> <p>“ I was of opinion that these facts do not constitute a defence and so ruled.</p> <p>“ 1 found that the selectmen of the town did not appoint tellers as provided by St. 1898, c. 548, § 179, but that the town clerk, who called the meeting to order, appointed the respondents Sidney B. Carter and James E. Andrews tellers, and they acted as tellers throughout the town meeting.</p> <p>I ruled that they were legally appointed tellers. I find that they were tellers de facto and I ruled that the election of the - town officers was not rendered void by the fact if it is a fact that they were not legally appointed tellers.</p> <p>“I found that, in the record made by the town clerk, the number of ballots cast for the office of selectman was not stated, but it was stated that the petitioner was elected.</p> <p>“ I also found that the petitioner was declared elected to the office of selectman by the respondent, Sidney B. Carter.</p> <p>“The respondents contend that [St. 1898, c. 548,] §-373 not having been complied with, the election is void. In my opinion § 373 does not apply to the record made by the town clerk of the election of town officers elected in open town meeting; and if it did, it would not, in my opinion, render the election void; § 373 manifestly applies to returns which have to be transmitted by the town to be canvassed by other returning boards.</p> <p>“ I found as a fact that St. 1898, c. 548, § 335 has been duly-adopted by the town of Berlin.</p> <p>“ I found, as a fact, that at the town meeting of the inhabitants of the town of Berlin, held on April 3d, 1901, the vote, a copy of which is annexed to the return in this cause, marked Exhibit 2, was adopted after a vote was taken in which' the inhabitants of the town of Berlin elected Carter and Andrews and Edmund W. Wheeler as selectmen.</p> <p>“ To the foregoing rulings of law the respondents seasonably excepted.”</p> <p>The vote above referred to as marked Exhibit 2, after a recital of facts in regard to the election of the petitioner at the meeting of March 4, declared “ Now, therefore, it is voted that the town hereby declares the ballot taken for the election of selectman at said meeting to be null and void, and that the office of selectman undertaken to be filled at that meeting is now vacant.”</p>

<p> Nuisance. Fireworks. </p> <p>A person who drives with a horse and buggy to an exhibition of fireworks in a public street for the purpose of witnessing the display cannot recover for an injury caused by his horse taking fright at rockets fired there by the defendant without a license.</p>

<p>Contract, Construction.</p> <p>The plaintiff, a maker of patented rolling machines, granted to the defendant, a manufacturer, the “ right and license to use ” a certain rolling machine and the “right and license to use” a second machine of the same kind, if the defendant found that he required such a second machine. The defendant agreed to pay $600 on the first day of July in each year during the life of the patents “as license fee and royalty for the use ” of the first machine, and in addition thereto, in case the second machine should be used, the sum of $2 per day for each and every day of its use during the preceding twelve months, provided that nothing was to be paid for the second machine for any day upon which the first should break down and the second be used in its place. Held, that this contract meant, that on the first of July in each year $600 was to be paid for the first machine whether it had been used at all during the year or not, and without reference to its use, and that the second machine was to be paid for in accordance with its use.</p>

<p>Tort for damage to property of the plaintiff caused by the falling of a wall alleged to have been upon the land and within the control of the defendant’s intestate, which had been left standing after the building of which it formed a part had been destroyed by fire. Writ dated December 2, 1899.</p> <p>At the trial in the Superior Court, before AOcen, J., the jury returned a verdict for the plaintiff in the sum of $4,257.28; and the defendant alleged exceptions.</p> <p>The case was argued at the bar in September, 1901, and after-wards was submitted on briefs to all the justices.</p>

<p>Tort, at common law, by a freight brakeman against the railroad company employing him for injuries alleged to have been caused by the defective condition of the brake wheel and part of the brake gearing which the plaintiff was using, with another count under the employers’ liability act alleging a defect in the ways, works and machinery used in the business of the defendant. Writ dated January 9, 1899.</p> <p>At the trial in the Superior Court, Sherman, J. ordered a verdict for the defendant, and, by agreement of counsel, reported the case for the consideration of this court. If the verdict was ordered properly, judgment was to be entered for the defendant. If upon all the evidence the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $5,500.</p>

<p>Insurance, Life. Statute, Construction. Corporation, Foreign.</p> <p>The proviso of St. 1894, c. 522, § 73, that every life insurance policy which contains a reference to the application of the insured must have attached to it a correct copy of the application, and that the application unless so attached shall not be a part of the policy or received in evidence, refers only to policies issued in Massachusetts, and does not affect a suit in our courts on a policy issued by a New York corporation doing business here to one living at the time in New Hampshire but domiciled in Massachusetts.</p>

<p>Practice, Civil, Reservation by report. Tax, Sale, Demand.</p> <p>St. 1898, c. 562, § 14, and St. 1899, c. 131, § 2, in regard to questions of law arising in the Court of Registration do not, as to cases coming by appeal from that court to the Superior Court, take away the authority given to the Superior Court by Pub. Sts. c. 153, § 6, and St. 1900, c. 811, to report cases for determination to this court.</p> <p>A collector of taxes, having taxes for two years to collect by a sale of the same land, after proper preliminary proceedings, may advertise the property for sale at the same time and place under authority of the two warrants for the nonpayment of the two taxes, and then may make a single sale of the property which will be valid.</p> <p>A statement of a tax in the advertisement of a tax sale as $17 for the years 1895 and 1896 does not meet the requirement of statements of two taxes one of $8 for the year 1896 and the other of $9 for the year 1896, and a sale thus advertised would be void.</p> <p>A demand for a tax on land need not follow form No. 8 in St. 1888, c. 390. Section 96 of that act permits the use of other suitable forms, and does not require in the demand a description of the real estate or an express reference to it.</p> <p>A tax sale and the deed given thereunder are not invalidated because an initial is omitted in the name of the owner of the land sold, if the owner was as well known by the name used as by his true name.</p>

<p>Bill in equity by a religious society organized under Pub. Sts. c. 38, § 24, having a house of worship called St. Anne’s Church in the town of North Brookfield, and three persons alleged to be the trustees of that society, against three defendants, to restrain them from acting as trustees of the society and from closing the church to the usual religious services held therein or in any way interfering with those services or exercising control over the property of the corporation, filed November 27, 1900.</p> <p>In the Superior Court, Grctslcitt, J. reserved the case, upon the bill and answer and a master’s report and the exceptions of both parties thereto, for the consideration of this court. The facts as found by the master appear in the opinion. The master stated, that he did not report the evidence, as no request therefor was made by the counsel either for the plaintiffs or the defendants.</p>

<p>Tort for injuries caused by the plaintiff stumbling over a wooden platform about sixteen feet square raised from four to eight inches above the concrete floor of the station of the Boston Terminal Company in Boston after the plaintiff had alighted from a train of the defendant and was passing through that station on her way to the street. Writ dated October 5, 1899.</p> <p>In the Superior Court, before Sherman, J., it appeared, that the station was owned and operated under the provisions of St. 1896, c. 516. The judge ruled, that the plaintiff could not maintain her action, on the ground, that under the statute the defendant owed no duty to the plaintiff at the place where she fell and was injured, as the defendant was compelled by the statute to use the station, and had no control of it, and directed the jury to return a verdict for the defendant. This was done, and at the request of the parties the judge reported the case for the determination of this court. Judgment was to be entered for the defendant if the ruling was to stand; otherwise, there was to be a new trial.</p>

<p>Damages, Under special grade crossing act. Statute, Construction.</p> <p>Under St. 1897, c. 619, providing for the abolition of the grade crossing of Dorchester Avenue and the Old Colony Railroad in Boston, the abolition was accomplished by an abandonment of the location of the railroad for over a mile, including the crossing, and the adoption of a new location crossing Dorchester Avenue nearly a mile beyond. The act then directed, that certain commissioners previously appointed by the Superior Court under St. 1890, c. 428, in regard to the abolition of the same crossing, should lay out a new highway over the old location of the railroad. It provided, that “ all damages suffered by any persons in their property by reason of anything done under this act” might be recovered in the manner provided in St. 1890, c. 428. Under this clause á petitioner, a portion of whose land was taken for the new highway, claimed, in addition to the value of the land taken, damages for the injury to his remaining land from the removal of the railroad, the use of which was essential to his business. Held, that the taking of the land for the new highway was not to be treated as part of the alteration of the grade crossing, but was a separate municipal improvement made possible by the abandonment of the railroad location, and that the words of the statute above quoted were intended to ensure, that all persons entitled to compensation should have it and to provide how they should proceed, and not to change the rule as to the matters for which compensation should be given; therefore, that the petitioner was entitled to no damages for the injury to his remaining land by the removal of the railroad.</p>

<p> Bailment. Lien. Damages. </p> <p>One who has a lien for the keeping of a horse does not lose it by refusing to deliver the horse unless paid an amount in fact excessive but which the lienor believes to be due. In such a case the bailor can discharge the lien by a tender of the true amount due.</p> <p>Where a bailee of a horse having a lien for his keeping refuses to deliver the horse except upon payment of an excessive amount which he in good faith believes to be due, this does not warrant a finding that the bailee has waived the right to a formal and complete tender of a smaller amount.</p> <p>Where the bailee of a horse has refused to deliver him except upon payment of an excessive amount for his keeping which he in good faitli believes to be due, and the bailor lias failed to discharge the lien of the bailee by making a tender of the true amount due, the bailee can recover the expense of keeping the horse after his refusal to deliver him. If the bailor in such a case intends to revoke the contract for keeping he must manifest that intent.</p>

<p>.Contract for alleged breach of an agreement to lend $5,400 to the plaintiff upon a mortgage of certain real estate in Somerville belonging to the plaintiff. Writ dated October 6, 1900.</p> <p>In the Superior Court, before Braley, J., judgment was given for the defendant upon agreed facts ; and the plaintiff appealed.</p> <p>By the agreed facts, it appeared, that the plaintiff’s first application was for a loan of $6,000. This application was referred to two members of the board of investment. These members reported orally to one Allen, who in the absence of the treasurer was performing the duties of that officer, that they were in favor of making the loan on a new application for $5,400 instead of $6,000, to be made upon the bank’s form of application, and the treasurer wrote to the plaintiff’s agent requesting him to have the plaintiff sign an application in accordance with this proposition on one of the bank’s blanks, which he enclosed for the purpose. The plaintiff did so, and sent it to the bank. No action was taken by the board of investment as a board upon the new application after it was signed.</p> <p>Allen wrote to the plaintiff’s agent as follows: “Dear Sir: Our Board of Investment has examined the estate of Mrs. D. S. Gilson, a six apartment house with 5256 Gilson Terrace, off Linden Ave., Somerville. The Board value it at $9,000 and are willing to loan $5,400. Yours respectfully, Oscar F. Allen, Treas.”</p> <p>Later he wrote to the plaintiff as follows: “Mrs. Delia S. Gilson, Dear Madam, Hon. Wm. B. Durant one of the conveyancers of this bank, has had conversation with members of our Board of Investment, and as it appears that the title to the estate is not perfectly satisfactory. The bank therefore decline to make the loan. Yours respectfully, Oscar F. Allen, Treas.”</p> <p>Allen was not a member of the board of investment nor a trustee. One of the two members of the board, to whom the loan was referred, never reported on the loan, except by saying verbally to the treasurer, that he was in favor of it, and never signed any estimate of the value of the property as required by law, nor did any two members of the board sign any such estimate nor any written report upon the value.</p> <p>The plaintiff’s application for the loan contained the provision as to examination and approval of the title to the plaintiff’s land by one of the solicitors of the defendant, which is quoted by the court. The substance of the solicitor’s report, upon which the defendant refused to make the loan, also is stated by the court.</p>

<p>Evidence, Opinion, Experts. Rape.</p> <p>On the trial of a bastardy process the complainant testified, that the defendant forcibly had sexual intercourse with her in spite of her making all the resistance in her power. The defendant asked a medical expert, in substance, whether it was possible for a man to have carnal intercourse with a woman of relatively the same strength against her will without rendering her unconscious by the use of drugs or otherwise. The question was excluded. Held, that the relative strength and activity of a man and woman struggling with each other was a matter of common knowledge and not a subject for expert testimony. Moreover, it did not appear what the defendant offered to prove by the witness, and, in the absence of a formal offer of proof, it could not be presumed that the answer would have been in the negative, as such an answer, if true, would exclude the possibility of rape, a crime recognized and punished by the law, except where the man is of greater relative strength or renders his victim unconscious.</p>

<p>Negligence, Employer’s liability.'</p> <p>In an action by a mason against his employer, a building contractor, for injuries caused by the explosion of a stone from dynamite which had been left in it after it had been blasted from the quarry, it appeared, that the defendant purchased the stone from the quarryman in the usual course of business and that he did not inspect it, that the inspection of stones after blasting is a general practice at quarries and that contractors never inspect stones bought from quarrymen. Held, that a verdict should have been ordered for the defendant; that the defendant owed the plaintiff no duty of inspection, having the right to assume that the proper inspection had been made at the quarry; and that, if the quarrymen were inexperienced or negligent, this was immaterial unless that fact had been brought to the attention of the defendant.</p>

<p>Negligence, Assumption of risk by employee, Contributory.</p> <p>One entering the employ of an electric street railway company, whose tracks at places run on one side of a road through a country town, where some of the trolley posts are so near the track that a person on the running board of an open car necessarily would strike them, assumes the risk of an injury thus caused. For a street railway conductor, experienced on other roads and sent out on a certain portion of the defendant’s road to learn the conditions attending its operation, to step upon the running board of an open car on the side next and near to the trolley posts, without looking to see whether there is any obstruction in the way or whether it is safe to do so, is want of due care on his part.</p>

<p> Action. Damages. </p> <p>Where a slight injury to the person is accompanied by a nervous shock due to the same wrongful cause, the injured person may recover for the consequences of the nervous shock whether the shock was due to the visible injury or merely accompanied it.</p>

Appeal to the Superior Court under St. 1890, c. 127, from a decision of the assessors of the city of Boston, refusing to abate a tax paid under protest by the appellants, a firm of stockbrokers, as the owners of shares in corporations of the value of $200,000, of which the petitioners’ customers had paid forty per cent and the petitioners the remaining sixty per cent, the shares being pledged to secure the last named amount, which the petitioners borrowed for the purpose,…

Tort against a pawnbroker for the value of certain diamonds and watches pledged by the plaintiff to the defendant and through the alleged negligence of the defendant carried away by the defendant’s absconding manager. Writ dated November 10, 1899. At the trial in the Superior Court, Bell, J. refused certain rulings, requested by the defendant, and allowed* the ease to go to the jury, who returned a verdict for the plaintiff. The defendant alleged exceptions.

<p>Municipal Corporations, Validity of by-law. Equity Jurisdiction, To enjoin a public nuisance.</p> <p>St. 1894, c. 481, § 11, authorizing a town which has adopted that section to make by-laws regulating buildings " for the prevention of fire and the preservation of life ” does not authorize a by-law undertaking to regulate offensive trades.</p> <p>A town passed the following by-law : “ No person shall, within one hundred feet of any other person’s building or land, erect or use any building for a planing mill, wood-working establishment, hotel or public hall, or for any manufacturing or other hazardous business, without first obtaining a permit in writing from the selectmen, and no such permit shall be granted until after such notice to owners of adjoining property as the selectmen shall order, and after a hearing pursuant to sucli notice.” Held, that this by-law was unreasonable and void, and was not authorized by St. 1894, c. 481, §11, permitting a town which has adopted that section “ for the prevention of fire and the preservation of life ” to make by-laws regulating the construction and use of buildings within its limits.</p> <p>- A town cannot maintain a bill in equity, to restrain an establishment on the ground that it is a public nuisance, without showing that the town in its corporate capacity has suffered damage of a special nature.</p>

<p>Bill in EQUITY against the American Bell Telephone Company, a Massachusetts corporation, one Charles M. Gleason, a stockbroker, and the Beacon Trust Company, to enjoin the transfer of eight shares of stock of the defendant telephone company and to require the delivery of the certificate representing those shares to the plaintiff whose testatrix had intrusted them to the defendant Gleason who fraudulently had pledged them to the defendant trust company to secure his own note, filed March 29, 1900.</p> <p>In the Superior Court, the case was heard by Mason, C. J., who made a decree for the plaintiff, ordering the defendant trust company to deliver the certificate to the plaintiff by a proper transfer and the defendant telephone company upon surrender of the certificate to issue to the plaintiff a new certificate for the stock represented by the certificate surrendered. From this decree the defendant appealed.</p> <p>The judge found the facts to be as follows:</p> <p>The plaintiff is the executrix of the will of Caroline M. Russell, late of Medford, deceased. The plaintiff’s testatrix, in April, 1897, was the owner of eight shares of the capital stock of the American Bell Telephone Company, which stood in her name on the books of that company and have not since been transferred thereon. The testatrix was then seventy-five years old or more and was in feeble health, but had full mental capacity to transact business. The defendant Gleason was then a stockbroker doing business in Boston, but living near the testatrix, and had at times advised and assisted her in business transactions and was believed by her to be entirely trustworthy. The defendant telephone company was then about to increase its capital stock, and had issued notice to its stockholders of their right to subscribe for new stock in proportion to their several holdings. The defendant Gleason knew that the testatrix had the eight shares of stock, and, without being requested to do so, called at her house in the evening, when he had reason to believe she was alone, and when she was alone, and informed her of her right to take new stock, advised her to avail herself of that right, and offered his assistance to enable her to surrenT der her certificate of eight shares and obtain one for the larger number, which should include the new stock. Acting upon the advice and under the direction of Gleason, the testatrix signed the transfer upon the back of the certificate for eight shares, in blank, and, for the purpose of surrendering the certificate to the company and obtaining in place a new certificate which should include the new stock to be taken, and for no other purpose, delivered the certificate to Gleason. Gleason did not seek to obtain a new certificate, but fraudulently pretended to do so, that he might obtain possession of the certificate and use it as security for a loan or loans to himself until he should be able to repay such loan or loans and then deliver the certificate to the company pursuant to the purpose for which it was intrusted to him. Gleason did not surrender the certificate to the company, but converted it to his own use, and fraudulently represented to the defendant trust company, that he was the owner of the stock represented by the certificate, and delivered the certificate to that company in pledge to secure his own note for $2,500. The defendant trust company took the pledge for value in good faith without knowledge of the fraud of Gleason.</p> <p>“ There is a custom among banks and brokers for certificates like that in question, with the transfer on the back signed in blank, to pass from hand to hand without inquiry as to the title of the party in possession unless some special cause for suspicion exists, but said Caroline M. Russell did not have knowledge of this custom.”</p> <p>Gleason still owed the defendant trust company $2,300 on the note, to secure which he fraudulently pledged the certificate, and the trust company still held the certificate.</p> <p>The plaintiff’s testatrix Caroline M. Russell never learned of the fraudulent acts of Gleason, and, a short time after she intrusted the certificate in question to him for surrender to the defendant telephone company, was stricken with paralysis, and until her death, more than two years later, was incapacitated and unable to attend to any business. After her death and the appointment of the plaintiff as executrix under her will, there was no unreasonable delay in ascertaining the facts and taking action to secure the plaintiff’s rights.</p>

<p>Petition by the metropolitan park commissioners under St. 1899, c. 419, for the appointment of apportionment commissioners, filed March 26,1900.</p> <p>The award of the commissioners was recommitted to them in accordance with a decision of this court reported in 178 Mass. 213, in order that they might state the grounds of their determination. Thereafter the commissioners filed a supplemental award.</p> <p>The case came on for hearing before Loving, J., on a motion of the Attorney General for the acceptance of the award. The award was objected to by the city of Newton and the towns of Milton and Brookline. The last named town filed a motion to recommit the award, and later the town of Milton was permitted to join in the motion.</p> <p>The justice was of the opinion that the questions arising upon the motions of the Attorney General and of the town of Brook-line should be reserved for the consideration of the full court, and reported the case for such consideration, the previous report by Barker,■ J., together with the tables, schedules and statements annexed thereto, to be treated as a part of the report, and the full court to assume that all the facts and matters stated in the previous report had been found by the reporting justice; such order and disposition to be made of the case as the full court might deem proper.</p>

<p>Tort for injuries from being struck by the open tailboard of a heavy wagon or dray of the defendant Rich, thrown against the plaintiff by a collision with an electric car of the defendant railway company. Writ dated May 23, 1898.</p> <p>At the trial in the Superier Court, before Sheldon, J., the jury returned a verdict for the defendant Rich, and a verdict against the defendant railway company in the sum of $9,416.(36; and the defendant railway company alleged exceptions.</p>

<p>Practice, Civil, Verdict. Contract, Implied breach. Limitations, Statute of. Interest.</p> <p>Where issues are framed for a jury, relating to a claim to recover sums paid under a rescinded contract, a general verdict returned by the jury for a definite sum of money, but not rendered upon any issue submitted to them, is of no effect.</p> <p>Where the plaintiff had advanced certain sums of money to the defendant’s intestote in consideration of the intestate’s oral agreement to convey or devise her house to him, and the intestate died without doing so, it was held, that the plaintiff’s-right of action to recover the money paid by him accrued only upon the death of the intestate and that the statute of limitations ran from that time. And semble, that the plaintiff could recover simple interest from the dates of the several advances, as, a rescission of the contract having been authorized by the conduct of the intestate, he should have his money as of the time when it was advanced.</p>

<p>Evidence, Declarations of deceased persons, Book entries to prove a negative.</p> <p>In an action against an executor on a promissory note of his testator the consideration was denied, and the plaintiff, in order to explain a certain matter that had been brought out in his cross-examination, testified on re-examination in his own behalf to statements of the testator, that the plaintiff had lent him money. The defendant then was permitted to put in evidence a ledger whose entries were in the handwriting of the testator and which on inspection manifestly purported to contain all the testator’s receipts, which showed no receipt of money by the testator from the plaintiff. Held, that the action was none the less supported by oral testimony of a statement of the testator, because such testimony had been made necessary by the cross-examination, and that the ledger was admissible under St. 1896, c. 445, and could be used to prove a negative.</p>

<p>Petition for a writ of certiorari to quash the proceedings of the board of street commissioners of the city of Boston in assessing a benefit on certain land of the petitioner under St. 1895, c. 498, from the widening and reconstruction of Clinton Street in Boston from Fulton Street to Commercial Street, filed April 5, 1901.</p> <p>The case was heard by Loring, J., who, at the request of the parties, reserved it upon the petition and return for the consideration of the full court.</p>

<p>Equity Pleading and Practice, Bill, Decree.</p> <p>Since St. 1883, c. 223, § 10, every bill in equity is assumed to have a prayer for general relief whether one is actually inserted or not.</p> <p>The decree entered in the Superior Court in this case is in accordance with the opinion reported in 178 Mass. 539.</p> <p>A defendant in a suit in equity, who had been ordered by the court to transfer to the plaintiff certain property acquired by the defendant through a transaction fraudulent against creditors both at common law and under the bankruptcy act, asked to have inserted in the decree a provision that certain sums advanced by him to pay creditors of the fraudulent debtor and a certain payment to the debtor’s wife should be repaid. Meld, that the transaction in question being void in part was wholly void, and the defendant might he ordered to reconvey without first being reimbursed.</p>

<p>Two actions OF TORT by the widow and administratrix of a gateman at a railroad crossing to recover under the statutes cited by the court for the death of her husband and intestate by reason of the negligence of the defendant. Writs dated October 20, 1900.</p> <p>In the Superior Court, Bishop, J. ordered verdicts for the defendant; and the plaintiff alleged exceptions.</p>

<p>Practice, Criminal, Summoning jury. Evidence, Of identity, Best and secondary, Things in evidence, Experts. Murder.</p> <p>Pub. Sts. c. 170, § 11, directing, that the clerks of courts in issuing the venires for jurors shall require from each town and city a number of jurors as nearly as may be in proportion to their respective number of inhabitants, does not require the proportion to be observed on every particular occasion when a jury is to be summoned, but is a general direction to the clerks that taking one term of court with another jurors shall be apportioned with reference to the population of the towns and cities, so that the duty of serving on juries shall be equalized as far as possible.</p> <p>In a murder trial a witness may identify a wagon by sound only, testifying, that he heard the defendant’s wagon go by at a certain hour of the night recognizing it as having a rattle known to him and by a peculiar sound made by the horse’s hoofs.</p> <p>The only deputy sheriff of a county in another State may testify that he knew nothing of a certain warrant and offer of reward, the non-existence of which is material to show the falsity of a statement of the defendant in a murder trial. And semble, that one having personal knowledge of the state of a record from inspection can testify that it did not contain a certain warrant without producing the record.</p> <p>In order to show that a murdered man was shot with a certain rifle belonging to the defendant, a bullet may be put in evidence which has been pushed through the barrel of that rifle and is marked in the same way as two bullets which were found in the body of the murdered man.</p> <p>Photographs of bullets so arranged as to bring out the likeness in the marking of the different bullets may be used at a murder trial in which all of the bullets are in evidence. If there were other aspects mor.e favorable for the defence, this could be pointed out to the jury on the original bullets.</p> <p>An expert may testify, that the bullets found in the body of a murdered man were marked by rust in the same way that they would have been if fired through the rifle of the defendant, and that it took several months for the rust that he saw in that rifle to form.</p> <p>The evidence stated in the opinion of the court was held to be sufficient to warrant the jury in finding a verdict of murder in the first degree.</p>

<p>Res Judicata. Equity Pleading and Practice, Taking bill for confessed.</p> <p>Taking a bill for confessed as against one defendant does not bind another defendant who has an interest in the matter; and a decree prematurely entered against the first defendant does not prevent a later inconsistent decree in favor of the second defendant, even if the second decree does not revoke the first by implication.</p>

<p> Wagering Contracts. Agency. </p> <p>Where a broker is employed to buy and carry stocks on a margin and actually buys and receives the securities there is no violation of St. 1890, c. 487. The contract under which that statute requires the securities to be actually received and delivered is the contract to buy not the contract to carry.</p>

<p>Negligence, Mere licensee, Contributory. Bailment, Rights of bailor on premises of bailee.</p> <p>The plaintiff left his horse and wagon in the public stable of the defendant for temporary custody. After the horse had been taken out the wagon was backed against the wall for storage. The plaintiff followed the wagon and put his driving gloves in it, then accepted a check for his team and left the stable. Later, returning with some packages which he wished to place in his wagon, he found it in the same place, hut other wagons had been placed there, one of them immediately in front of his. He swung himself around a post and leaned toward his wagon, when a carriage hoist which he had not noticed came down 1 on him and caused the injuries for which he sued. There were in plain sight various appliances indicating the presence of a carriage hoist, including a check rope and a double hoisting hawser of heavy rope hanging next the plaintiff’s wagon and within two feet of the post, and the post itself was grooved to guide the hoist. Held, that in revisiting his wagon the plaintiff was at most a mére licensee for whose safety the defendant was not bound to provide at that part of his premises. Held, also, that the plaintiff in failing to notice the obvious indications of a carriage hoist was not in the exercise of due care.</p>

<p>Executor and Administrator, Funeral expenses. Contract, Implied.</p> <p>A son in whose house his mother has died can recover from her estate as part of the funeral expenses under Pub. Sts. c. 144, § 6, money expended by him in the purchase of a cemetery lot for her burial, bought by him in good faith immediately after her death.</p> <p>A son cannot recover against his mother’s estate for services in taking care of his mother in her last illness when she was a member of his household and was supposed not to have any property beyond her usual wearing apparel.</p>

<p>• Practice, Civil. Abatement. Partnership.</p> <p>The decision of a trial judge upon a question of procedure and not of jurisdiction . raised by a plea in abatement is final.</p> <p>In an action on a promissory note signed in a firm name, it appeared, that one of the defendants borrowed money from the plaintiff for his individual use and gave the note therefor, signing without authority the name of a partnership to which he had formerly belonged but which had ceased to exist several years before. No notice of the dissolution of the partnership ever had been given by publication or otherwise and there was no evidence of a general notoriety of the dissolution, but the plaintiff had never heard of or dealt with the firm while it existed. Held, that these facts did not require a judge, trying the case without a jury, to find or to rule that the other member of the partnership was bound by the note.</p>

<p>Corporation, Liability of directors.</p> <p>A judgment against a corporation after it had obtained a discharge in bankruptcy, imposing no liability on the corporation, would not satisfy the requirement of Pub. Sts. c. 106, § 62, that a judgment must be recovered against a corporation as a condition precedent to the liability of stockholders or officers. Therefore such a judgment should not be entered.</p>

<p>Practice, Civil, Agreed facts. Contract, Implied. Boston Transit Commission, Powers. Jurisdiction. Way.</p> <p>No question of pleading is open when a case is reserved on agreed facts unless it is specially reserved.</p> <p>Under St. 1894, c. 548, § 86, it was the duty of the Boston Electric Light Company to incur the expense of removing a certain conduit containing its wires, found by the transit commission to interfere with the construction of the subway, and of building it in a new location granted for it by the commission, if it wished to have it rebuilt. That company refused to remove the conduit unless the commission would pay the cost of removal. The commission, after notice that they should do so at the expense of the light company, removed the conduit and constructed it in the new location paying the expense. Thereupon the light company used and continued to use the conduit in its new location. In an action by the commissioners against the light company to recover the expense thus incurred, it was held, that the defendant at this stage and after having used the conduit could not raise the point that it did not wish to have it rebuilt, and that the commissioners, having been forced to incur the expense by the failure of the defendant to perform its statutory duty, could recover the amount on an implied Contract. Also, that the commission had the power to relocate the conduit.</p> <p>The jurisdiction given to this and the Superior Court by § 20 of St. 1894, c. 548, providing for rapid transit in Boston, to compel compliance with the provisions of that act, is not exclusive of other remedies.</p> <p>The provisions of Pub. Sts. c. 49, § 17, as to the removal of buildings or materials from laud taken for a highway, have no application to a removal of a conduit in the construction of the subway in Boston under St. 1894, c. 548, § 20.</p>

<p>Partition, Sale. Cranberry bog.</p> <p>On a petition for the partition of a cranberry bog, whose value largely depends on the certainty with which it can be flowed from an abutting great pond, the waters of which are used by the owners of the bog without injury to the public or to other property owners but without legal right, the court, under Pub. Sts. c. 178, § 65, St. 1894, c. 104, properly can take into consideration the de facto condition of the premises and order the land sold on the ground that it cannot be advantageously divided.</p>

Complaint for keeping intoxicating liquors on September 14,, 1900, with intent unlawfully to sell the same, received and sworn to in the Police Court of the city of Brockton on September 17, 1900. On appeal to the Superior Court, the case was tried before Fox, J. It appeared, that the defendant was a druggist doing business in Brockton in his own name and employing two clerks. It did not appear that he had a druggist’s license.

Tort, with counts for deceit and conspiracy, for fraudulently inducing the plaintiff to marry one Dr. Cocke, who was already secretly married to the defendant Greene, and to live with him as his wife for more than five years while the marriage between Cocke and the defendant Greene was subsisting and valid and wholly unknown to the plaintiff—Cooke and after his death his administrator being joined as a defendant. Writ dated April 25, 1899.

Contract on a guaranty in writing of a note of one Edward P. Tuttle for $18,000, Tuttle having made default thereon and the collateral .security given by him having become worthless.. Writ dated July 11, 1899. The pleadings, ending in a demurrer to the amended declaration, are described by the court. In the Superior Court, the trial, before Sherman, J., took the course stated by the court.

<p>Petition of certain landowners in Fitchburg to be allowed to intervene and become parties in six cases of Fitchburg v. Fitchburg Railroad Company, relating to the abolition of a certain grade crossing in that city under St. 1890, c. 428, and praying that all proceedings in those cases since January 10,1901, be declared null and void, and be vacated, filed April 18,1901.</p> <p>The cases came on to be heard before G-ashill, J., on an oral motion to confirm the commissioners’ modification and correction of the. decision of the commission as to Water Street, Putnam Street and Laurel Street crossings, and upon the petition of Susan C. Dickinson and others, in relation thereto. The judge allowed the petition of Susan C. Dickinson and others, to the extent of permitting them to be heard in objection to the confirmation of the report of the commissioners, and ordered the report confirmed. The petitioners, Dickinson and others, appealed. At the request of the petitioners, the judge reported the questions raised upon the motion, petition and appeal for the determination of this court, such decrees and orders to be made in the premises as law and equity might requite.</p>

Information by the Attorney General against the administrator with the will annexed of the estate of James Smith, late of Boston, filed January 31, 1901.

<p>Bill in equity by the town of Sharon against the tree warden and deputy tree warden of that town to restrain them ' from removing the guideboards affixed by authority of the town to certain trees within the limits of a highway, filed October 31, 1900. '</p> <p>At the trial in the Superior Court, before Sell, J., without a jury, the judge found as facts, that the trees to which the guide-boards were attached were public shade trees within St. 1899, c. 330, that the guideboards had been so attached for many years, and that the location of the guideboards on these trees had been approved and ratified by the town. He ruled, as matter of law, that the prohibition of St. 1899, c. 330, refers to an interference not authorized by law with shade trees, and that it is not an allowable construction of the statute to construe it as giving tree wardens supreme power over trees as against the power of the town to locate and maintain guideboards.</p> <p>The judge ordered a decree for the plaintiff; and, by consent of the parties, reported the case for the consideration of this court. If the evidence stated by the court was competent upon the question whether the location of the guideboards upon the trees had been legally approved and ratified by the town, and if the interpretation of St. 1899, c. 330, was correct, an injunction was to issue to restrain the defendants from any interference with the guideboards; but if the testimony was incompetent, or if the interpretation of the statute was incorrect, the plaintiff’s bill was to be dismissed, or such other order was to be made as justice and equity might require.</p>

<p>Equity Pleading and Practice, Parties, Decree for conveyance after sale by a master.</p> <p>In a suit in equity to reach and apply in payment of a debt due the plaintiff an equitable interest of the defendant in certain land it is not necessary under St. 1884, c. 285, § 1, to join as parties the trustees holding the legal title of the land.</p> <p>A decree in equity directing the appointment of a master to make a sale of the defendant’s equitable interest in certain land, when the defendant is a resident of this Commonwealth, should not authorize' the master to convey the interest hut should order that upon a sale being made by the master the defendant should make the conveyance.</p>

Bill for instructions by the executor of the will of Alice M. Rice, late of Worcester, alleging that the will contained a bequest of $25,000 to the President and Trustees of Bowdoin College in the State of Maine, a corporation created by the Commonwealth of Massachusetts by act of June 24, 1794, and that the corporation is an educational and charitable institution which should be exempt from taxation under St. 1891, c. 425, alleging also that the plaintiff by the will was…

<p>Petition for a writ of mandamus by six citizens of the town of Millbury against the chairman and secretary of a republican caucus of that town and five other persons declared at the caucus to have been elected the republican town committee of Mill-bury, praying that the chairman and secretary be ordered to count the votes cast for the petitioners and others and to declare the seven or eight having the highest number' of votes' to be elected members of the committee, filed October 12, 1901.</p> <p>The petition alleged, that a majority of the voters had determined to elect a new committee and had prepared a ticket with eight names; that the day before the caucus the old committee met and changed the number of the committee from eight to seven, giving no notice of their action; that at the caucus the ballot for eight was thrown out although it received a majority of the votes cast and the committee’s ticket of seven perpetuating themselves was declared elected.</p> <p>The respondents demurred to the petition, on the grounds, among others, that the writ of mandamus would not lie for the matters alleged and that an adequate and exclusive relief was afforded by the laws of the Commonwealth for the wrongs, if any, of which the petitioners complained.</p>

Tort against a police officer and the keeper of the lockup in Chelsea, who also was the chief of police of that city, for assault and false imprisonment. Writ in the Municipal Court of the City of Boston dated September 18, 1900. On appeal to the Superior Court the case was tried before Richardson, J. The findings of fact warranted by the evidence are stated by the court. At the close of the evidence the defendants requested the judge to instruct the jury as follows: First.

Contract or tort against a constable to recover $420.55 and interest for money taken from the plaintiff under alleged unlawful attachments. Writ in the Municipal Court of the City of Boston dated September 17, 1900. On appeal to the Superior Court the case was tried before Aiken, J., without a jury. The following facts appeared in evidence: ... The defendant was a constable of the city of Boston, qualified to serve civil process.

<p>Summary process under Pub. Sts. c. 175, § 1, to recover possession of certain demised premises in a building on Temple Place in Boston. Writ in the Municipal Court of the City of Boston dated March 9, 1901.</p> <p>On appeal to the Superior Court, the case was heard by Fox, J., who found that the' defendants had not waived .their rights to a renewal of the lease under which they held, and ruled, that the covenant for a renewal, which is quoted by the court, constituted at least an equitable defence to the plaintiffs’ action. At the request of the plaintiffs, the judge reported the case for determination by this court. If the covenant for renewal contained in the lease, upon the other facts stated in the report, created a term in the defendants existing at the time of the bringing of this action, or constituted an equitable defence which could be set up in this action, judgment was to be entered for the defendants otherwise, judgment was to be entered for the plaintiffs.</p>

Contract for interest from May 8, 1898, to May 18, 1899, upon a pecuniary legacy bequeathed to the plaintiff by the will of John C. Paige, late of Boston, who died on May 8, 1897. Writ dated December 21, 1900. At the trial in the Superior Court, without a jury, Sherman, J. found for the plaintiff in the sum of $320.74 ; and the defendants alleged exceptions.

Three actions of contract against three different fire insurance companies on policies alike in form, by Thomas J. Quinn, the assured, and the Cape Cod Five Cents Savings Bank, mortgagee, to which the policies were payable in case of loss. Writs dated May 18,1900.

<p>Contract, under St. 1890, c. 437, § 2, for payments alleged to have been made upon wagering contracts, with three counts, the first two following the language of the statute and the third on an account annexed setting forth the different payments, each count being for the amount of $18,929.27. Writ in the Supreme Judicial Court dated June 7,1901.</p> <p>The defendant demurred, alleging, among other grounds of demurrer, that the first two counts being under the statute and the third at common law could not be joined, and that the declaration did not contain any description of the securities and commodities alleged to have been the subject of purchase and sale. Hammond, J. overruled the demurrer and the defendant appealed. The case was sent to Marcus Morton, Esquire, as auditor, and later was heard by Hammond, J., upon the auditor’s report. The defendant requested the following rulings, the rulings and portions of rulings which the justice refused to give being enclosed in brackets:</p> <p>1. In order to recover the plaintiff must prove both that she did not intend to perform any or all of the contracts entered into by her with or through the defendant by the actual receipt and delivery of the stock and the payment of the price, and that the defendant had reasonable cause to believe that no such intention to actually perform on her part existed.</p> <p>2. The reasonable cause for belief in the mind of the agent or other party to the contract, upon which the plaintiff’s right of recovery under the statute is made to depend, is that which [creates a certainty of conviction and directs the understanding; that which satisfies a careful and mature judgment.] Facts which create a mere doubt or suspicion are not enough.</p> <p>[3. There is no sufficient evidence that the defendant had this reasonable cause for belief that the plaintiff did not intend to perform her contracts and she cannot recover.]</p> <p>4. It is not enough that the evidence furnishes ample cause for the belief on the part of the defendant that the plaintiff did not intend to carry out and complete her contracts. The finding by the auditor that there was such ample cause will not warrant the finding by this court that the cause for belief was reasonable, [and the plaintiff cannot recover.]</p> <p>[5. From the finding of the auditor that the plaintiff was to receive a proportion of certain commissions and supposed that they were allowed to her by the defendant, the defendant was a partner of the plaintiff and not her agent or the other party to the contract, and she cannot recover.]</p> <p>[6. Upon all the evidence as a matter of law the plaintiff cannot recover.]</p> <p>Upon these requests and upon the evidence the justice ruled and found as follows:</p> <p>“ I give the first request. The second request I have modified as follows:</p> <p>“ The reasonable cause for belief in the mind of the agent or other party to the contract, upon which the plaintiff’s right of recovery under the statute is made to depend is that which satisfies the judgment of a man of ordinary care and capacity. Facts which create a mere doubt or suspicion are not enough. I decline to give the fifth and sixth. The fourth I give omitting the words at the end thereof ‘and the plaintiff cannot recover.’ There is something else in this case outside of the auditor’s report. I take into consideration in my finding, the fact that there is no evidence on the part of the defendant. The result is that the first is given as it stands, the second and fourth as modified by me, and I decline to give the third, fifth and sixth. And having made these rulings I find for the plaintiff in the sum named by the auditor.”</p> <p>The defendant alleged exceptions to the refusals to rule and to the ruling made in regard to the absence of evidence on the part of the defendant.</p> <p>The auditor’s report was as follows:</p> <p>The suit was brought by authority of St. 1890, c. 437, to recover certain sums of money paid by the plaintiff to the defendant on account of contracts to buy and sell stocks upon credit and margin.</p> <p>The plaintiff appeared and testified. The plaintiff summoned the defendant by serving a subpoena duces tecum at “ his last and usual residence,” requesting the production of his books. The defendant did not appear and no books were produced.</p> <p>The evidence, which consisted mainly of the testimony of the plaintiff, and checks, receipts and memoranda of the transactions in question, was in substance as follows:</p> <p>The plaintiff entered into business relations with the defendant in January, 1901, through a Mrs. Porter who had charge of an exchange on Winter Street in Boston, maintained for the purpose of enabling women to watch the stock market and to speculate thereon. The exchange was connected by telephone with the defendant’s place of business. Subsequently Mrs. Porter gave up her room on Winter Street and moved to Tremont Street and then to The Copley. At these latter places she had “living” rooms, not an~exchange. She, however, maintained a ticker and kept in telephonic communication with the defendant’s office.</p> <p>The plaintiff, at the suggestion of Mrs. Porter, began to speculate by buying and selling stocks on margins through the defendant, the amount necessary for the margins being at first supplied by or through Mrs. Porter. On January 18 the plaintiff herself began to make payments by check or in cash to protect the stocks which she was buying and selling on margin and from that time until May 5,1901, during which period she bought and sold on margin many hundred shares, she paid the defendant $11,475.</p> <p>“ The checks, the receipts given by the defendant, and the plaintiff’s uncontradicted testimony, prove beyond question that the defendant received all these amounts either directly or through Mrs. Porter. The testimony of the plaintiff satisfies me and I find that the amounts were paid by the plaintiff as margins to protect the stocks; that she never intended to receive or deliver the stock which she ordered to be bought or sold; that in all the transactions she never received or delivered any stock, but that all the transactions were wagering contracts within the meaning of the statute.”</p> <p>The evidence showed that the defendant, under the name of “Morton & Co.,” ran an exchange for stock transactions. In the transactions with the plaintiff he bought and sold many hundred shares of stock for her without delivering or receiving certificates. He acknowledged in writing the receipt of $8,700 from the plaintiff “for margins” on shares “long” and “short.” On or about May 3 he gave a written statement to the plaintiff of transactions involving sixteen hundred shares of various stocks, some of which, as the statement showed, were to be delivered to the plaintiff, and others to be received from her, and upon all of which “deposits” had been made. As has been stated, none of these stocks nor those bought and sold by the defendant on margin for the plaintiff before this statement, had ever been delivered by him to the plaintiff or received from her.</p> <p>“ The evidence, taken in connection with the failure on the part of the defendant to offer any evidence, satisfies me and I find that he had ample cause to believe that the plaintiff had no intention, during these business relations, of actually receiving or delivering any of the stock bought or sold.”</p> <p>The defendant offered in evidence a receipt signed by the plaintiff, for “ certificate 385, for one hundred shares Colorado Southern common,” dated February 15, 1901, and contended that it tended to prove that every transaction before its daté was a legitimate one, and that the plaintiff having signed it was precluded from denying that the transactions previous to its date were not on margins.</p> <p>The receipt was as follows: “Boston, February 15, 1901. Messrs. Morton & Co., Boston, Mass. Gentlemen: Enclosed please find certificate 385 for one hundred shares of Colorado Southern common, which I desire you to place to my credit as collateral security. The same belongs to me and I have a good right to sell and assign the same; and, in accordance with the usual custom, I therefore authorize you to sell or assign the same and borrow upon or use the above or any other collateral security belonging to me in your possession or control, without further notice, in all transactions with you, whether the same have been or shall be authorized by orders given to you, in writing, orally, by telephone or by telegraph, for the purchase or sale of stocks, bonds or commodities. I hereby agree that I will make no contract with you for the purchase or sale of stocks, bonds or commodities unless I have full intention to complete such contract by the actual receipt and delivery of the securities so ordered to be bought and sold; and I acknowledge that all contracts heretofore made for such purchases and sales have been made with the intention to complete the same by such actual receipt and delivery of the securities. Name — Barbara Ballou. Address — Hotel Bellevue. (This is to be returned to Morton & Co.)”</p> <p>The plaintiff testified that she bought the Colorado Southern stock outright because the defendant told her it was necessary, the price of the stock being so low; that she did not remember that the certificate was actually given to her; and that she signed the receipt without knowing its contents and that the statement in the receipt, that all contracts made before its date were made with the intention to complete them by actual* receipt and delivery was not true.</p> <p>“ So far as the question is one of fact, I find that the receipt does not tend to prove the legitimacy of the transactions before its date. The acknowledgment by the plaintiff that contracts made by her were legitimate cannot make them legitimate, when they are shown to be illegitimate by the whole course of dealings. Legitimacy of transactions is not determined by agreement or statements of parties. Such a receipt tends rather to prove that illegitimate contracts were being made and not legitimate ones. Its whole tenor shows that it was designed to protect as far as possible from the effect of the statute, those dealers who contemplated engaging in an illegitimate business. Even assuming that the plaintiff knew the contents of the receipt, she would not be precluded from denying the true nature of the transactions, in view of the fact that the defendant himself gave character to the transactions. If he had any right to enforce the receipt against the plaintiff, he certainly waived that right by his own actions before and after its date.”</p> <p>The defendant contended, that the relations existing between the plaintiff, the defendant and Mrs. Porter were such as to preclude the plaintiff from recovering. The plaintiff allowed Mrs. Porter to use some of the plaintiff’s furniture in her rooms on Tremont Street and Copley Square, and she was often present at those rooms. It was understood that the plaintiff and Mrs. Porter were to receive between them one half of some commissions charged by the defendant, but for what did not appear. The plaintiff did not actually receive any of those commissions. She supposed that they were allowed her by the defendant in her account with him, but there was no proof that they were so allowed. No account was ever rendered to her.</p> <p>“ The evidence failed to satisfy me that the relations between the parties were such as to make the plaintiff a partner with the defendant, or as to preclude her from recovery in this action.” The auditor found for the plaintiff in the sum of $11,683.02, with interest from the date of the writ.</p>

<p>Contract by real estate brokers for a commission of $250 for negotiating an exchange of certain real estate belonging to an estate of which the defendant was executor on Highland Street, in that part of Boston called Roxbury, for a house, barn and land at Natick belonging to one Charles H. Spring. Writ in the Municipal Court of the City of Boston dated July 27, 1900.</p> <p>Coming on appeal to the Superior Court, the case was tried before Braley, J., without a jury. It was agreed, that in the transaction in question the plaintiff Hardy acted as broker for both parties, to be paid in part by each, and that the amount of commission to be paid to him by the defendant, if earned, was $250. It appeared, that Hardy procured the execution of the following agreement :</p> <p>“ This Agreement, made this thirtieth day of April, 1900, by and between Charles H. Spring, of Wellesley, in the State of Massachusetts, of the first part, and E. O. Howard, executor of the O’Toole estate of Boston, in the State of Massachusetts, of the second part, Witnesseth: That the party of the first part shall convey to the party of the second part a certain property at No. 15 Prospect street, Natick, Mass., consisting of house, barn and ten and one-half acres of land, subject to a first mortgage of three thousand dollars at 5% per annum, and a second mortgage of $1500 at 6% interest, taxes and all other charges to be adjusted to date of passing papers and a cash payment of forty-five hundred (4500) dollars. In consideration whereof the said party of the second part shall convey to the party of the first part, providing authority can be obtained from the probate court therefor, four houses numbered 69, 71, 73 and 75 Highland street, Roxbury District, Boston, Mass., subject to four first mortgages only, aggregating eighteen thousand (18,000) dollars, interest, taxes and all other charges and rents to be adjusted to May 1st, 1900. Papers to be passed as soon as proper license is obtained from probate court. And for a valuable consideration we, the said parties of the first and second part, further agree to pay a broker’s commission. And it is mutually agreed that in the event of a failure of the parties of the first or second part, who have each paid two hundred dollars this day to bind this bargain, to perform their part as aforesaid, the said payment of the party at fault shall be forfeited to the said other party and he may retain the same for his damages, but in no way shall it be construed as to liquidate damages for failure to perform this contract. This agreement to be void if not accepted by twelve o’clock noon on May 1, 1900. In witness whereof the said parties hereto, and to another instrument of like tenor, set their hands and seals on the day and year above written. Charles H. Spring. [Seal. 1 E. O. Howard, Exor. [Seal.] ”</p> <p>It appeared, that on the same day Howard deposited with the plaintiffs his note for $200 payable to Spring. Spring did not deposit a corresponding note to Howard, and, being called as a witness by the defendant, testified, that he had said to Hardy that he would deposit whatever Howard did, but that Hardy did not ask him to deposit a note. There was conflicting evidence as to whether Howard agreed to get the note from Spring.</p> <p>The defendant testified, that he had applied to the Probate Court for leave to sell the real estate and had published notice of the petition and made return thereof, but that he did not complete the proceedings because he was notified that Spring declined to carry out the transaction.</p> <p>The defendant requested the judge to rule as follows:</p> <p>1. If the agreement between the defendant and Spring is not binding on Spring, the plaintiffs cannot recover.</p> <p>2. The agreement between the defendant and Spring was not binding on Spring, as it was not completed on his part.</p> <p>3. It was the duty of the plaintiffs to effect the complete execution of a binding contract, in order to entitle them to commissions.</p> <p>4. If the plaintiff, Hardy, agreed with the defendant to obtain from Spring a note of $200, and neglected to do so, the plaintiffs cannot recover.</p> <p>6. The plaintiffs are bound to show that, when the license mentioned in the agreement was obtained, or might have been obtained by the defendant, Spring still had the property which he was to exchange, and that it was possible for him to carry out the trade.</p> <p>8. That the plaintiffs cannot recover, because the evidence shows that they did not use good faith toward the defendant, in their failure to obtain from Spring a note to offset the note deposited by Howard.</p> <p>9. There is no evidence to justify a finding that the provision of the contract for depositing the note was waived by the defendant.</p> <p>The judge gave the rulings numbered 1, 3 and 4, and refused to give those numbered 2, 6, 8 and 9.</p> <p>The judge found for the plaintiffs in the sum of $262.50 ; and the defendant alleged exceptions.</p>

<p>Negligence, Employers’ liability, assumption of risk.</p> <p>The plaintiff was employed to work" for the defendant in transferring wires to a new set of poles from old ones which had to be abandoned on account of their age. He climbed one of the old poles for the purpose of throwing down the wires from the cross-arms. In throwing down the wires they fell across a wire guy connecting the pole with a fence. An overseer was standing on the ground near the foot of the pole and directing the work. The plaintiff told him the wires were crossed on the guy and asked him what he should do. The overseer told him to cut the guy, which he did, and the pole fell, causing the injuries for which the plaintiff brought action under the employers’ liability act. Held, that, assuming that the overseer was a superintendent within the meaning of the act and that his direction to cut the guy was an act of superintendence, the plaintiff could not recover, because the risk of the falling of a decayed pole was one which he knew and assumed in accepting the employment of dismantling old poles; that his question to the overseer was not whether it would be safe for him to cut the guy, and that it fairly could not be found, that the order was an assurance that it would be safe to cut it, or that the plaintiff had a right so to interpret the order.</p>

<p>Tort for injuries from being thrown violently to the ground by the starting of a car of the defendant from which the plaintiff was alighting. Writ dated May 6, 1899.</p> <p>At the trial in the Superior Court, before Richardson, J., it was admitted by the defendant that the plaintiff was in the exercise of due care. At the close of the evidence the defendant asked for rulings, that there was no evidence to warrant the jury in finding that the bell to start the car was rung by the conductor or at his suggestion, and that there was no evidence to warrant the jury in finding that the defendant’s servants and agents caused the car to start as the plaintiff was alighting.</p> <p>The judge refused to give these rulings. The defendant contended, that the negligence alleged in the plaintiff’s declaration being that the defendant’s servants and agents started the car while the plaintiff was alighting, and no other act of negligence being alleged, the plaintiff was bound to prove that negligent act in order to recover. The judge submitted to the jury the following question : “Was the bell rung by the conductor or by any one by his direction or authority while Mrs. O’Neil was alighting from the car?” The jury answered this question in the affirmative, and found for the plaintiff in the sum of $1,650, of which under an order of the judge the plaintiff afterwards remitted all over $900. The defendant alleged exceptions.</p>

<p>Petition for an assessment of damages under St. 1895, c. 488, § 14, alleging that the petitioner had on April 1, 1895, an established business on land in the town of West Boylston as a practising physician and surgeon, which was greatly decreased in value by the carrying out of the act, filed February 8, 1899.</p> <p>The case came on to be heard before Loring, J., upon the report of commissioners theretofore appointed to hear and report upon it, and by agreement of the parties the justice reserved the case for the consideration of the full court, such judgment to be entered as the court should deem proper.</p> <p>The report of the commissioners was as follows:</p> <p>The petitioner’s claim is based upon provisions of § 14 of the metropolitan water supply act, which are as follows:</p> <p>“ In case any individual or firm owning on the first day of April in the year one thousand eight hundred and ninety-five, an established business on land in the town of West Boylston, whether the same shall be taken or not under this act, or the heirs or personal representatives of such individual or firm, shall deem that such business is decreased in value by the carrying out of this act, whether by loss of custom or otherwise, and unable to agree with said board as to the amount of damages to be paid for such injury, such damages shall be determined and paid in the manner hereinbefore provided.”</p> <p>The petitioner was a practising physician, who had been established in West Boylston since 1881, and who on the first day of April, 1895, resided and had his office in a house belonging to his wife in West Boylston, which was taken by the metropolitan water board under this act. He had built up a practice which extended throughout West Boylston, Holden, West-Sterling, the edge of Princeton, Boylston Centre and other places; his gross income from his practice, up to 1891 or 1892, was about $2,500 per year on the average; in the year 1893 he doubled the charges for his visits and consultations and in 1894 opened an office in Worcester, which he kept till 1898; he visited his Worcester office at first, three afternoons a week," afterwards every afternoon ; his gross income according to testimony, in the year 1892 was $3,046.25, in 1893 $2,368.75, in 1894 $1,286.25, in 1895 $1,365.25, in 1896 $1,315.20, in 1897 $1,073.25, not including his Worcester practice.</p> <p>After leaving West Boylston in 1898, the petitioner went to Hew York, and studied to become a specialist in diseases of the eye; he resumed practice in Massachusetts in 1900, as a specialist, and has not since earned any money beyond his expenses.</p> <p>The counsel for the Commonwealth objected to the claim of the petitioner, upon the ground that he had not shown that he owned “An established business on land in the town of West Boylston,” and therefore was entitled to no damages.</p> <p>The counsel for the petitioner contended that the statute was made to cover cases of injury, precisely like the one in question.</p> <p>The commissioners find as a fact, that the taking of land at West Boylston, which embraced practically all the business part of the town, and which wiped out all the important industries, necessarily affected the plaintiff’s business to a considerable extent. They therefore report that, if the court shall be of the opinion, that the provisions of § 14 are intended to cover the injuries to the business of a practising physician, who resided within the territory taken, and visited patients there and in the neighboring towns above referred to, and there had his established office to which patients resorted for medical advice, the petitioner is entitled to recover damages for such injuries.</p> <p>The Commonwealth contended that the rule of damages to be applied in this case was the difference between the market value of the business on the first day of April, 1895, and its market value, after the carrying out of the provisions of this act, and requested the commissioners to rule as follows:</p> <p>1 and 2. That the petitioner has not shown that he owns or owned an established business in or on land in the town of West Boylston, and this commission must therefore report that under the terms of this statute he is entitled to no damages.</p> <p>3. If the petitioner is entitled to recover at all, the measure of his damage is the difference between the market value of the business owned by him on land in West Boylston, on the first day of April, 1895, and its market value, after the carrying out of this act.</p> <p>4. That the commissioners find as a fact, that the established business owned by the petitioner upon the first day of April, 1895, on the land in the town of West Boylston, was not decreased in value by the carrying out of this act.</p> <p>5. The evidence of what the petitioner as a specialist and teacher of diseases of the eye has earned since his abandonment of his general practice, is no evidence of what he could have earned had he attempted to build up a general practice, and cannot be considered.</p> <p>The commissioners refused to give the rulings above requested, and the respondent excepted. ,</p> <p>The petitioner contended that he was entitled to recover in these proceedings such a sum of money as would give him the equivalent of his loss in income, by reason of the taking, for such reasonable time as would be required to get back into a practice of the same amount which he had in West Boylston on April 1, 1895. In case the court shall be of the opinion that the petitioner is entitled to recover anything, under the provisions of this act, and shall adopt the rule of damages contended for by the respondent, the commissioners find the amount of damages under such rule to be $750.</p> <p>In case the court shall adopt the rule of damages contended for by the petitioner, the commissioners find that under that ruling the petitioner should receive $7,360.</p> <p>The respondent contended that the provisions of the act, so far as § 14 is concerned, were unconstitutional. The commissioners do not pass upon this question, as they do not understand it to be open to them, under the terms of their appointment.</p>

<p>Way, Highway by prescription.</p> <p>If a strip of land adjoining a highway is used by the public for twenty years, the fact that it was so used in pursuance of an attempt on the part of the owner to dedicate it, which failed by reason of Pub. Sts. c. 49, § 94, does not make the use less adverse or prevent the extension by prescription of the highway over the strip of land so used.</p> <p>Use by the public for twenty years, unexplained, is enough to establish a highway by prescription without any act of recognition on the part of the town or city.</p> <p>It always has been assumed that the establishment of a highway by prescription necessarily imposes liability for a defect therein under Pub. Sts. c. 52, § 18. R. L. c. 51, § 18.</p>

<p>Contract for the breach of an oral agreement to give the plaintiff employment. Writ in the Municipal Court of the City of Boston dated August 27, 1900.</p> <p>On appeal to the Superior Court, the case was tried before Bond, J. The defendant relied on the following release:</p> <p>“ Know all men by these presents, .That I, James J. Galvin, of Boston, in the county of Suffolk and Commonwealth of Massachusetts, in consideration of the sum of $49T6¡fo (forty-nine and ^y) dollars, to me paid by the Boston Elevated Railway Company, a corporation duly established by the laws of Massachusetts, the receipt whereof is hereby acknowledged, do release, acquit, and forever discharge the said Boston Elevated Railway Company of and from all claims and demands, actions and causes of action whatever, for damages, costs, loss of service, expenses and compensation for, on account of, or in any way growing out of, and hereafter to grow out of an accident which happened on or about October 2,1899, at or near Pleasant street entrance to Subway, so called, Boston; whereby I was injured by reason of two of said company’s cars colliding while in discharge of my duties as a motorman on one of said cars, and do hereby, for myself and my heirs, executors and administrators, covenant with said Boston Elevated Railway Company forever to indemnify and save harmless the said Boston Elevated Railway Company against all claims and demands of all persons, for damages, costs, loss of service, expenses or compensation for, on account of, or in any way growing out of, said accident and its results. Witness my hand and seal this twenty-fourth day of October, in the year eighteen hundred and ninety-nine. I have read the above release before signing. James J. Galvin.” [Seal.]</p> <p>The plaintiff testified, that on October 2, 1899, while he was in the employ of the defendant as a motorman, he was injured; that thereafter he went to see one McManus, claim agent of the defendant, for the purpose of obtaining a settlement from the defendant for his claim on account of the injuries. The plaintiff was asked the following question: “ Q. What did</p> <p>you do with McManus? What conversation did you have with him ? ” This question was objected to by the defendant, and thereupon the counsel for the plaintiff offered to prove, that on or about October 24, 1899, the plaintiff demanded of the defendant the amount due him for his injuries and requested payment; that the defendant then promised and agreed to pay the plaintiff in full settlement and satisfaction for “his said debt” and injuries a sum stated, and to receive him back into its service and employ him at the same wages he was receiving at the time of his injuries, and give him easy work until such time as he should be able to return to his position as motorman; that the defendant required as a condition to this promise and agreement and as a further consideration therefor that the plaintiff should sign and execute a release to the defendant.</p> <p>The judge excluded the evidence, and it was agreed by the plaintiff, that, the evidence being excluded, there was nothing to go to the jury. The judge directed a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability.</p> <p>In an action against an employer for an injury from a circular saw, the plaintiff contended, that the accident was caused by a thumb screw that held the gouge of the machine in place having worked loose and that the thread of this thumb screw was so worn that it could not be set securely by hand. In order to demonstrate this, the plaintiff’s only witness, besides himself, tried an experiment in open court with the saw table on which the accident happened. After setting the thumb screws with his fingers, the witness was asked “ to move the gouge or cause it to slip in the presence of the jury.” He admitted that he could not then stir it without pounding the gouge on the end, a strain to which it would not be subjected in sawing boards. Held, that a verdict rightly was ordered for the defendant; that if the thumb screw had been tightened properly the accident would not have happened, and on the evidence the plaintiff was not in' the exercise of due care.</p>

<p>Agency. Estoppel, By conduct.</p> <p>In a suit to redeem from a mortgage on payment of $2,500 with interest and other charges, the defendant contended that the mortgage covered another note for $2,000 on which the plaintiff’s name had been forged by one B., her son-in-law. The condition of the mortgage was the payment of “ the sum of $2,600, together with any other sum or sums of money that I now owe to or hereafter may borrow from the said J.” [the mortgagee] during the life of this mortgage. At the request of B. the plaintiff had signed the $2,500 note after reading it and tlie mortgage without reading it or knowing what it was. B. falsely pretending to act for the plaintiff agreed in her behalf witli the defendant, that the mortgage should cover the $2,000 note on which he had forged the plaintiff’s name as a joint maker. The plaintiff testified that at the time of the transaction she had unlimited confidence in B. On two previous occasions the plaintiff had mortgaged her dwelling house to raise money to assist B. and the arrangements for those loans were conducted by B. but it did not appear that the defendant knew of the previous transactions. Held, that the plaintiff was entitled to redeem without paying the $2,000 note, that B. in making that note and agreeing that the mortgage should cover it did not act as agent of the plaintiff nor had she clothed him with any apparent authority to do those acts, even if the defendant had acted upon any of the facts relied on to show apparent authority, which he did not.</p> <p>One who signs a paper without reading it is charged with knowledge of its contents.</p>

<p>Bill in equity to restrain the enforcement of a chattel mortgage, on the ground that it was not recorded and therefore not valid against the plaintiff who claimed under a later mortgage of the same chattels duly recorded, filed July 20, 1900.</p> <p>The Superior Court made a decree for the plaintiff, granting an injunction in accordance with the prayer of the bill; and the defendants appealed.</p>

<p>Contract under St. of Vermont, 1900, No. 142, on a judgment for $3,431.34 obtained by the plaintiff against the Central Vermont Railroad Company, an insolvent corporation, whose property was acquired by the defendant by purchase and reorganization under statutory authority after foreclosure sale, for grain destroyed by fire on September 9,1890, in a grain elevator at Ogdensburg, New York, owned and operated by the insolvent corporation, whose negligence caused the fire. Writ in the Supreme Judicial Court dated July 16, 1901.</p> <p>The case was heard upon agreed facts.</p> <p>St. of Vermont, 1900, No. 142, on which the plaintiff based his right to recover reads as follows:</p> <p>“No. 142. An Act to amend No. 159 of the Acts of 1898, entitled an Act to incorporate the Central Vermont Railway Company.</p> <p>“ It is hereby enacted by the General Assembly of the State of Vermont:</p> <p>“ Section 1. In addition to the payments specifically required by section 5 of No. 159 of acts of 1898, to be made by the Central Vermont Railway Company, said company shall pay in full with interest all such judgments as have been or may be recovered against the Central Vermont Railroad Company for loss of property by fire in the grain elevators of said last named corporation at Ogdensburg, September 9, 1890. The said Central Vermont Railway Company shall deliver to the said several judgment creditors its four per cent, gold bonds, at par, in payment of their respective claims, or may pay the same out of its available funds, in money, at its option, and if such payment in bonds or money is not made by July 1, 1901, any of said judgment creditors may have an action against said Central Vermont Railway Company for the recovery of the same, provided such action is brought within three years from the passage of this act.</p> <p>“ Sec. 2. This act shall take effect from its passage.”</p> <p>Section 5 of the act incorporating the Central Vermont Railway Company, referred to, reads as follows:</p> <p>“ Sec. 5. There shall be delivered fifty-five thousand dollars of said bonds, when executed and certified, to D. D. Ranlett, treasurer of the Central Vermont Railroad Company, or if he will not accept the trust then to the Welden National Bank in trust to sell on the open market and pay in full without interest the unpaid claims and notes due from the Central Vermont Railroad Company for supplies, amounting to the sum of forty-four thousand three hundred and three dollars, as appears by the books of "the auditor of said company and its receivers. Any funds remaining in the hands of the trustee shall be returned to the company hereby incorporated. There shall be delivered to said trustee in trust for the settlement in full of the following notes and. demands against the Central Vermont Railroad Company, viz.: Nellie P. Hubbard, note, $15,000 ; Randolph National Bank, note, $5,000; National Bank of Redemption, note, $93,842.10; Welden National Bank, notes, $20,000; Wagner Car Company, for car destroyed, $7,000.</p> <p>“The following amount of said bonds, viz.: 1. For the Nellie P. Hubbard note, $18,750 par value of said bonds ; 2. For the Randolph National Bank note, $5,000 par value of said bonds; 3. For the National Bank of Redemption noté, $93,842.10 par value of said bonds; 4. For the Welden National Bank note, $20,000 par valúe of said bonds ; 5. For the Wagner Car Company claim, $7,000 par value of said bonds. The remainder of the stock and bonds representing the purchase money of said railroads, shall be distributed to the several persons and corporations entitled thereto under the provisions of a certain agreement in writing dated Boston, September 29, 1898, between the executors of J. Gregory Smith’s estate, the Grand Trunk Railway Company, the bondholders’ committee and others. And this grant is accepted on the above conditions. Provided further that this company shall pay the instalment due the equipment bondholders under the Webb mortgage $25,000 and interest as of the first of January, A. D. 1899 and the -interest due upon all the bonds due up to the date of the new bonds provided for in the foregoing agreement in cash and shall exchange new bonds for the equipment bonds, to wit: $350,000, dollar for dollar.”</p> <p>Section 7 provides “ This act shall be taken to be a public act and shall be subject to alteration, amendment or repeal, as the public good may require.”</p>